DEFENDING OUI AND DWI - FAQs
I have just been charged with OUI (Maine) or DWI (New Hampshire), what happens next?
On your summons you will have received a date to appear in Court. Normally that is your arraignment date where you enter a plea and receive a trial date if you elect to plea 'not guilty.' In Maine you can request a jury trial within 21 days of the arraignment date and have your trial in Superior Court. In New Hampshire, unless it is a felony, your first trial will take place in District Court. If it is a DWI in which you face jail time which is usually a second DWI or one with aggravating factors, you can appeal to the Superior Court in New Hampshire for a jury trial. In either Maine or New Hampshire, the State will attempt to take your license away through an administrative process, which is separate from the Court proceedings. Thus, an OUI or DWI splits into two separate legal tracks, one headed towards a criminal conviction with the possibility of a fine, jail time, probation, license suspension, and other conditions, and another towards an administrative proceeding intended to suspend your driver's license for a period of time. We can assists you in both matters and often, having a lawyer during the administrative process can increase your chances for success in the criminal court.
How does the State administrative suspension procedure work?
The Stated of Maine and New Hampshire will send a letter to your last known address, which is the last address that the State has on file through the Department of Motor Vehicle. You have a period of time in which to request an appeal before a hearings examiner. If you do not request an appeal, you will lose your license for the period of time set forth in the letter you receive. In New Hampshire you often get a temporary license and must request a hearing to get back your license.
What happens at the administrative hearing regarding my loss of license?
You have the right to be present with an attorney. You also have the right to obtain certain information prior to the hearing, or request that it be brought with the officer to the hearing. At the hearing the State must show by a preponderance of the evidence, that you were operating a motor vehicle while under the influence of intoxicants. The hearing officer must determine by a preponderance of the evidence if there was probable cause to request you to take a breath or blood test, and if you took that test, was it valid test result and were you over the legal limit (except for those under 21 and certain persons having special or conditional driver's license, the legal limit is .08% alcohol by volume). If you refused a test, the hearings officer only determines probable cause and if you were properly advised of your obligation to take a test and you refused. Except for challenging the reason for the stop of a motor vehicle, the issues raised in an administrative license suspension hearing are much like the issues raised in a criminal court proceeding.
I was arrested for DWI or OUI, and I may be guilty, what defenses do I have?
Your primary defenses to a DWI or OUI are the following:
1. Whether the officer had reasonable articulable suspicion to stop your motor vehicle;
2. Whether the officer had probable cause to ask you to take a breath or blood test after observing you and giving properly administered Standard Field Sobriety Tests;
3. If you took a breath or blood test, was the test properly administered to you and is the result valid;
4. If you did not take a test, does the officer have enough evidence through his or her observations of you to prove that you were operating a motor vehicle while under the influence of intoxicating liquor or drugs.
Did the officer have reasonable articulable suspicion to stop my vehicle?
When an officer stops a motor vehicle they usually must have reasonable articulable suspicion for doing so. This is known among lawyers and judges as a Terry stop, nicknamed after the United States Supreme Court case of Terry v. Ohio. It is a lower standard than the probable cause standard needed for other searches and seizures, but it does require that the officer have a reason to stop your motor vehicle. Many times the stop is perfectly valid, such as a person speeding or weaving while operating their motor vehicle. However, in some instances the stop is questionable and can be challenged in Court. (A Terry stop cannot be challenged in an administrative license suspension hearing.) Police at certain times of the night or in certain circumstances are looking for drunk drivers. Thus, you will be much more likely to be stopped Saturday morning at 1 A.M. than at 1 P.M. on Thursday afternoon. Because police are anxious to pull over anyone on certain days of the week and times of the day, they will sometimes stop a vehicle without having proper articulable suspicion. If a Court finds that you should not have been pulled over, all evidence obtained after the illegal stop is suppressed, which includes the officer's observations of you, any test result, and all other evidence obtained after the stop of your vehicle. This would almost always result in the charges being dismissed. We have successfully obtained the dismissal of numerous cases because of illegal stops and have also had the State dramatically reduce a charge based upon a questionable stop. We know what to what factors to look for and can help you if you were illegally stopped.
Please be cautioned, however, that there are times when an officer can stop your vehicle without any specific reasons. One example is when you pass through a roadblock. Your vehicle can be stopped randomly. The law is constantly changing on the use of roadblocks. The Maine Law Court recently found that a roadblock was not permissible in a case where a person was charged with OUI. We know the most up-to-date laws regarding roadblocks and can assist you if you were charged with DWI or OUI as a result of stop on a roadblock.
Did the officer have probable cause to ask you to take a breath or blood test after observing you and giving you Standard Field Sobriety Tests (FSTs)?
Once the officer stops you, he begins observing everything you do as part of determining whether to arrest you for DWI or OUI and request that you take a breath or blood test. (The officer will also include any observations made of you operating your vehicle as the basis for the stop.) The officer will see how you speak to him and observe whether your speech is slurred, observe how you provide your license and registration, how you exit the vehicle, how your eyes look, and any other behavior that could be attributed to a person who has consumed alcohol or narcotics and is showing the effect of intoxication or impairment. Once the officer has the person outside of the vehicle, they will typically conduct what are known as FSTs. These tests are contained in the National Traffic Safety Administration manual and are taught to police officers. There are only three standard FSTs outlined in the manual which are:
Horizontal Gary Nystagmus (HGN)- Nystagmus means jerkiness of the eyes, and this test is based upon scientific findings that persons with a blood alcohol content high enough to be OUI or DWI will have jerkiness in their eyes when moved side to side. Thus, the officer holds out an object, such as a pen or small flashlight, and moves it horizontally so that the person will follow the object with his or her eyes. The officer tracks each eye for three clues which are: jerkiness of the eyes prior to 45 degrees (90 degrees being the eyes moved as far to the side as possible and 0 degrees looking straight ahead), jerkiness of the eyes at maximum deviation (90 degrees or as far over that the person can look), and jerkiness of the eyes as they move from 0 to 90 degrees (called lack of smooth pursuit). A person having four of the six clues is considered to be impaired.
Walk and Turn- This test involves a person walking on a painted line, or other visible line, and taking nine steps out and nine steps back. The person must walk the line heel to toe, so there can be little-to-no separation between the heel and toe (this is not like the distance between heel to toe when people are walking normally). The person must turn around a certain way, stay on the line, and not raise his arms too high for balancing. There are eight clues for this test and if a person shows more than two, he is considered to be impaired. These clues are:
-The person can't balance during the instructions for the test
-The person starts the test too soon
-The person stops while walking or pauses to regain balance
-The person misses heel to toe which means a gap of at least one-half inch between heel to toe
-The person steps off the line
-The person uses arms to balance, which means his arms are extended more than six inches from his side
-The person has an improper turn, which is either losing balance as he turns or turns in a direction other than the way the officer directed
-The person takes more or less than nine steps in either direction.
One leg stand- This test involves a person standing and raising one leg at least 6 inches off the ground with the foot pointed out, holding the leg straight and keeping the eye on the elevated foot, and holding it there for 30 seconds. Slight movement can be expected (such as body tremors), but the person must not hop, put his foot down, put his arms too far out to his side for balance, or sway. There are four clues for this test and a person having two out of four clues is considered to be impaired. The clues are:
-Distinct swaying side to side or back to front
-Using the arms for balance by putting it out more than six inches from the side
-Hopping to retain balance
-Putting the foot down before thirty seconds is up (if the foot drops three or more times the test is terminated as a fail).
Other tests are sometimes given by police officers, and include counting backwards or reciting the alphabet by beginning and ending at a certain point, or touching the finger to the tip of the nose. These types of tests are not standardized, but are intended to be observations of your behavior to determine if you are impaired (no different from observing your balance when you exit the vehicle and checking to see if you are slurring words or can react normally to simple commands).
You can challenge these tests, but you need an expert attorney to do so. There are a number of requirements for officers to follow in giving and evaluating FSTs, and the failure of an officer to follow these requirements can lead to the test results being disregarded in a court or administrative hearing. Did you know the following:
*You cannot take the HGN test if you are wearing contacts.
*Certain head injuries or conditions will disqualify you from the HGN test.
*For the HGN test to be valid an officer must hold the object a certain distance from your eyes, and move it along at a certain speed horizontally.
*You cannot take the walk and turn and one leg stand if you are overweight by a certain number of pounds, are over a certain age, or have medical issues that affect your balance.
*For the walk and turn you need a visible line of some kind to follow, and you need to be in an area where you feel safe and there are no obstructions or other conditions on the ground that would affect the test.
*You cannot take the walk and turn and one leg stand tests if you have heels on your footwear of greater than 2 inches.
These are some of the requirements for these FSTs. Every case is different and we look at each FST and see whether it was properly administered and properly evaluated and scored. All this is critical because a test not done or scored properly is invalid and not evidence that you are impaired. We know what to look for and can evaluate both these tests and the officer's conduct in observing and giving the FSTs.
All of the officer's observations, especially the FSTs, leads to a decision of whether there was probable cause to arrest you and ask you to take a blood or breath test. If a court determines there was not such probable cause, any evidence obtained after the decision to arrest you will be suppressed, including any test results or later statements you made to police. If the hearings examiner determines there was not probable cause to believe that you operated a vehicle while impaired, then you will not lose your license. In the criminal case you need to file a Motion to Suppress to challenge the officer's determination of probable cause.
If you took a blood or breath test, was the test properly administered to you and was the result valid?
Once you are arrested the officer will ask you to take a blood or breath test. Once there is probable cause to believe you are operating a vehicle under the influence of intoxicating liquor, you are legally required to take a test. You can refuse but the refusal usually leads to a longer suspension of your driver's license and a harsher sentence in the criminal case if you are convicted. Let's assume you took the test. There are three types of tests usually given: breath test by Intoxilyzer 5000, breath best by blowing up a balloon, or blood test. Over 90% of all tests are the Intoxilyzer 5000 so we will discuss this test. If, however, you were given a blood test or other breath test there are still standard procedures to follow in taking the sample and analyzing the test.
Lets assume you had an Intoxilyzer test result of .14%, well over the usual legal limit of .08%. You may think that you can't challenge the test. You would be wrong to think there is no defense to a test result. The Intoxilyzer 5000 is a machine that measures the amount of alcohol contained in your breath. It is accurate within .015% of the most accurate blood test. This test, however, has a number of important variables and factors to be examined to see if it was conducted properly. Did you know the following:
*The Intoxilyzer 5000 needs to be cleaned and certified within a certain period of time of the date the machine was used to take your test.
*A person must be observed at least 15 minutes prior to the test being given to make certain he of she is not doing a number of things that could throw off the test, such as smoking a cigarette, chewing gum, belching, throwing up, and other like activities involving the saliva and breath which can invalidate a test.
*A certain sized sample must be taken from your breath to obtain a valid result.
*Several test samples are taken without your breath, and several samples are taken with your breath, and these samples will sometimes show readings that indicate the machine is not working properly in this instance, or not working properly at all.
*Certain actions or medical conditions can create the presence of mouth alcohol which can effect the results of the test.
These are just some of the items an expert attorney will look for in evaluating the test. The Intoxilyzer 5000, like FSTs, has a manual with procedures to follow. It is critical that the person administering the test follows all the rules and procedures or it will be invalid Remember, these are machines and any machine can malfunction. Also, police officers are human beings capable of making mistakes. In many police stations, the time before and during the test is recorded on video. Sometimes, this video can be very helpful in having test results suppressed or challenged. We know what to look for in evaluating how the test was conducted and the results.
If you refused the test (or if the test is invalid or suppressed), does the officer have enough evidence through his observations to convict you of OUI and DWI?
This question is answered by examining the officer's observations of you, including the reason for stopping your vehicle, and your behavior during the time the officer approached your vehicle through all of the period of observation (including any questions the officer asked which you answered) which lead to the conclusion that you were impaired during the operation of a motor vehicle. In Maine and New Hampshire, your refusal can be brought the jury or Judge's attention, but it cannot be used as evidence that you were impaired. Without a test result, it becomes more difficult for the State to prove that you were OUI or DWI because a valid test result of .08% or more automatically means you violated the law, regardless of proof of impairment. Without a valid test result the State has to present more evidence to convict you.
Can I be convicted of OUI or DWI based upon drug use?
You can but it is more difficult for the State to do this. These are usually referred to as drug impairment cases. You can be convicted of this even if the drugs you are taking are legal. You can be convicted of this if you take a drug alone, or the drug in combination with alcohol, and either the drug or the combination impairs your driving. The State has a number of problems in drug impairment cases. First, not all officers are trained in detecting drug use and many are not trained in detecting the effect of all types drugs on people. Thus, a Drug Recognition Expert may need to be called to determine probable cause as to whether the person is being affected by drug use. Second, drug tests are not standardized like alcohol tests, meaning that there is no blood percentage creating the evidence of guilt of operating under the influence of drugs, like there is in alcohol cases where the standard is .08%. The tests you will be asked to take are usually a urine test (which only detects the presence of a drug) or a blood test (which can detect the quantity of a drug in the blood). Tests for urine are of little assistance to the State because it only proves you had some amount of a drug in your system, however slight that amount might be. When a blood test is given even if a drug is present in a certain quantity in blood, it is difficult to correlate that percentage to a finding of impairment since there are no percentage standards for drug quantities in blood which impair a person (such as the .08% standard for alcohol in the blood). As you can see, it is much harder for the State to prove an OUI or DWI based upon drug use. If you face such a charge you should consult an attorney. We have successfully defended hundreds of people in such cases.
Should I hire an attorney to defend my OUI or DWI?
You should always hire an attorney. You should do this even if you believe it is hopeless. There are many defenses to an OUI and DWI someone who is not trained in this field doesn't know. The police and the State will not tell you what you need to know. It is vital to have an attorney look out for your interests. Even the slightest reduction in charges or having the penalty lowered often results in a savings of thousands of dollars in fines and insurance costs, as well as reducing time you will miss at work because of mandatory jail or a reduction in the license suspension. There are many collateral consequences that come from having an OUI or DWI. For example, some countries, like Canada, often prevent persons with OUI or DWI convictions from entering the country. You will not know all of the potential impacts of a conviction unless you consult with an attorney. Did you know:
*Any officer who conducts a FST or uses the Intoxilyzer must be properly certified*
