Thursday, April 19, 2012

Operating Under the Influence or OUI charges: What can a Lawyer do?

Subject performing Walk and Turn test at an OUI traffic stop
The "Walk & Turn" is one of the Standardized Field Sobriety Tests
In order to convict someone of a crime, the prosecution must prove every element of the charge beyond all reasonable doubt. In Maine, a person is guilty of Operating Under the Influence if they operate a motor vehicle at a time when they are impaired by intoxicants, or when their alcohol level is .08 or higher. Proving a criminal case is a lot of work and the prosecution would really like it if you made their job easier by pleading guilty at your first court appearance. Understand that you are not obligated to do this and that by pleading guilty, you are giving up your right to investigate and contest all aspects of your case. Here is a brief explanation or some of the basic issues that might arise in an OUI case:

You can use these links to jump to following sections of the article:
Traffic Stop
Roadside Detention
Field Sobriety Tests
Officer's Arrest Decision
Miranda Warnings 
Operating Under the Influence of Drugs
How a Lawyer Can Help Your Defense


There must be a legitimate reason to detain a suspect. The police cannot just stop a car on a hunch; they must have a reasonable belief that the driver is breaking the law. If the traffic stop is improper, all evidence obtained from that stop should be kept out of the Operating Under the Influence trial.

Roadside Detention

That stop was probably based on a plate light or blinker or other minor infraction. The officer must have some reason to believe that you are under the influence of alcohol of drugs to further detain you for field sobriety tests. If an officer detains you to do these tests without a good reason, they have acted illegally and any evidence they gain from that point on should be kept out of trial.

In order to determine whether you are under the influence of drugs or alcohol, the officer will first have you do some roadside test. These might just seem like made up circus tricks but they are actually a specific set for standardized tests developed by national authorities. While there is a substantial dispute as the whether these tests are good measures of impairment or intoxication, they are widely used by police and and accepted by courts. Still, the officer must be properly trained in doing roadside sobriety tests and the tests must be administered in that very specific standardized way. If tests are administered improperly or by an untrained officer, then the test are not a valid indicator of whether someone is under the influence. A judge may exclude some or all of the field sobriety test evidence from trial.

The officer uses the information learned above in deciding to make an arrest. That arrest must be based on probable cause to believe that a crime has occurred. If there is not sufficient cause to support the arrest decision, a judge should exclude from trial any evidence developed after that arrest.


The police might ask the driver questions in order to develop additional evidence, in the form of the defendant's own statements, which can be offered at trial. If an individual is "in custody" at the time the questions are asked, then the law requieres that the police first inform the driver of their rights to remain silent and right to counsel. If the office fails to do this, the answers to those questions should be keep out of court.


After arrest, people are required to submit to an alcohol breath test. Most tests in Maine are done using 10 or 20 year old machines. The testing device must be properly approved by State agencies, must be properly maintained and calibrated and the device must be operating correctly. If the machine used in your case was not properly calibrated, maintained or functioning, a judge should exclude the test result from trial.


Testing Procedure

An officer administering the breath test must be trained and certified and the testing must be done according to proper procedure. This requires a 15 minute observation period before the test. The subject must have any foreign objects removed from the mouth and be observed continuously. The officer must make sure they do not burp, vomit, drink or eat anything as this might contaminate the breath test. Subjects normally blow in the machine twice but might give more samples if there are problems with the machine or with one of the samples. A judge can prevent an improper breath test from being admitted at trial.

Time Elapsed Between Operation and Testing

Normally, police get a breath test reasonably soon after the time the defendant drives the car. If the test is accurate, it tells what the alcohol concentration was at the time of the test. In some cases, one or two hours or more might pass between the time of operation and the time of testing. The question then becomes, how much does the test result really tell the court about whether the driver was under the influence at the at the time they operated the car? A person might be below the limit when they drive, get pulled over and arrested on suspicion of OUI, as they for the test they absorb alcohol and give a breath test that is over the limit.

Even a driver who has no alcohol in their system can be charged with OUI if the prosecutor believes that they were impaired by some drug, even drugs that are legitimately prescribed. Drug OUIs are harder for the prosecution to prove. Police will generally have a trained and certified drug recognition expert do a special evaluation. The scientific and legal communities have questioned the validity of these evaluations. The police will usually do a urine test but this test will only show the presence of certain drugs. The test does not show how much of the drug is in your system or whether the amount is intoxicating or therapeutic.

A lawyer who is trained and experienced in Operating Under the Influence cases will know how to investigate your case and bring important issues to the Court’s attention. Some defenses challenge the factual basis for a criminal charge. For instance, one could present an argument that they were not the person driving the car, or that they were not impaired by the drugs they took. But many times, the most important defenses do not dispute the facts of the case at all, instead, they take advantage of the rules of evidence, Maine law and constitutional protections that prevent certain evidence from ever getting before a jury. These laws and rules exist to protect people from having questionable evidence used against them and to prevent wrongful convictions.

Pleading guilty at your initial appearance, guarantees your conviction. Discussing your case with an attorney might reveal defenses or weaknesses in the State’s case. A lawyer can also talk with the prosecutor to negotiate a more favorable resolution even when no strong defenses are available. If you intend to plead guilty, a lawyer can still review the evidence to make sure that there are no major issues and to confirm that you are making the right decision.

If you want to discuss any of these or other issues, please consult with an attorney. I am always happy to meet with potential clients in my office to discuss possible defenses. I never charge a fee for those initial consultations.