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OUI Defense

MAINE'S OUI LAW - FREQUENTLY ASKED QUESTIONS

QUESTION: What Is Operating Under The Influence (OUI) Under Maine Law?

ANSWER: Under Maine law, the crime of Operating under the Influence (OUI) is defined as "operat[ing] a motor vehicle... while under the influence of intoxicants...or ...[w]hile having an alcohol level of 0.08% grams or more of alcohol per 100 milliliters of blood or 210 liters of breath." 29-A M.R.S.A. section 2411. For purposes of the OUI statute, "operating" means either operating or attempting to operate a motor vehicle. 29-A M.R.S.A. section 2401(6). The Maine Law Court has stated that: "According to popular acceptance, the meaning of the term 'to operate a motor vehicle' is the same as to 'drive' it. It usually means that a person must so manipulate the machinery that the power of the motor is applied to the wheels to move the vehicle forward or backward." State v. Sullivan , 82 A.2d 629, 630-631. (Me. 1951). Proof of an attempt to operate requires proof of an intent to operate, and the taking of a substantial step that is firmly corroborative of that intent. State v. Henderson , 416 A.2d 1261, 1263. (Me. 1980). If a person whom a police officer suspects to have been operating under the influence admits to having operated the motor vehicle, that admission is sufficient proof, by itself, to satisfy the element of operation, without the need for any further proof. 29-A M.R.S.A section 2431(4). Maine law defines the term "motor vehicle" broadly, as "any self-propelled vehicle not operated exclusively on tracks." 29-A M.R.S.A. section 101(42). The definition makes specific exclusions for snowmobiles, motorized wheelchairs, and all-terrain vehicles when they are not being operated on a public or private road, street or bridge. 29-A M.R.S.A. sections 101(42), 2080, 101(92).

OUI is a Class D crime if the person charged has no more than one prior OUI offense within 10 years of the current charged conduct. 29-A M.R.S.A. section 2411(5)(A) and (B). For those in the following circumstances, OUI is a Class C charge: (1) the person charged has 2 or more prior Class D OUI offenses within 10 years of the current alleged conduct. 29-A M.R.S.A. section (5)(C) and (D); or (2) the offense would otherwise be Class D, but the person is charged in the current offense with having in fact caused serious bodily injury to another person while operating under the influence. 29-A M.R.S.A. section 2411(1-A)(D)(1) and (5)(D-1). OUI is a Class B crime in the following circumstances: (1) when it is committed within 10 years of a previous conviction under Maine law for a Class C OUI, 29-A M.R.S.A. sections 2411(1-A)(D)(2) and 5(D-2), 17-A M.R.S.A. section 9-A(3), State v. Stevens , 2007 ME 5, 912 A.2d 1229; (2) when it is committed within 10 years of a previous conviction in any jurisdiction of criminal homicide involving operation of a motor vehicle under the influence, 29-A M.R.S.A. sections 2411(1-A)(D)(2) and 5(D-2); or (3) when the person is charged in the current offense with having in fact caused the death of another person while operating under the influence. 29-A M.R.S.A. sections 2411(1-A)(D)(1-A) and 5(D-2). Class C OUI charges carry mandatory minimum jail terms of 6 months and court-ordered license suspensions of 6 years. 29-A M.R.S.A. section 2411(5)(D-1). Class B OUI offenses carry mandatory minimum jail terms of 6 months and court-ordered license suspensions of 10 years. 29-A M.R.S.A. section 2411(5)(D-2).

QUESTION: Does The State Need To Prove A Specific Concentration Of Alcohol Or Drugs In My System To Convict Me Of OUI, And What Does It Mean To Be "Under The Influence"?

ANSWER: In addition to proof that you operated a motor vehicle, the crime of operating under the influence requires proof that you operated either "under the influence of intoxicants," or "while having an alcohol level of 0.08% grams or more of alcohol per 100 milliliters of blood or 210 liters of breath." Either alternative will satisfy the elements of the crime. By case law, you are under the influence "if [your] mental or physical faculties are 'impaired however slightly' or 'to any extent' by intoxicants. State v. Worster , 611 A.2d 979, 981 (Me. 1992); State v. Bento , 600 A.2d 1094,1096 (Me. 1991). It is therefore possible to operate under the influence with an alcohol level less than .08%, just as it is possible to commit the crime by operating with an alcohol level greater than .08% even though you are not actually impaired. In either case, it is necessary for the state to prove either that you were "under the influence" or had an excessive alcohol level when you operated a motor vehicle.


QUESTION: What Substances Count As "Intoxicants" For Purposes Of Maine OUI Law?

ANSWER: To be under the influence of intoxicants means to be under the influence of "alcohol, a drug other than alcohol, a combination of drugs or a combination of alcohol and drugs." 29-A. M.R.S.A. section 2401(13). Drugs are broadly defined to include "any natural or artificial chemical substance that, when taken into the human body, can impair your ability to safely operate a motor vehicle." 29-A M.R.S.A. section 2401(4). This definition includes prescription and over-the-counter medications, as well as marijuana, other illegal drugs and even inhalants.


QUESTION: If A Police Officer Asks Me To Take A Chemical Test, Am I Required To Submit, And Do I Have A Right To Choose The Type Of Test I Take?

ANSWER: Everyone operating a motor vehicle in Maine is required to submit to and complete a blood, breath, or urine test (for analysis of alcohol level and drug concentration) if there is probable cause to believe he or she has operated a motor vehicle while under the influence of intoxicants. 29-A M.R.S.A. section 2521. Maine law provides that a breath test is to be administered unless the police officer determines that a breath test is unreasonable. 29-A M.R.S.A. section 2521(2). The law further provides that when the officer determines that it is unreasonable to administer a breath test, another chemical test must be administered. Id. If a blood test is to be administered, you "may choose a physician, if reasonably available." Id . Again however, the police officer has the authority to determine whether the test to be administered is a blood test or a breath test.


QUESTION: What Will The Results Of A Breath or Blood Test Mean For Me?

ANSWER: If your alcohol level is less than .05%, it is prima facie evidence that you are not under the influence of alcohol. 29-A M.R.S.A. section 2432(1). If your alcohol level is greater than .05% but less than .08%, it is relevant evidence of OUI, but not prima facie evidence. 29-A M.R.S.A. section 2432(2). If it is established that you operated a motor vehicle while your alcohol level was .08% or more, the crime of OUI will have been established without regard to whether you were also "under the influence." 29-A M.R.S.A. section 2411(1-A)(A)(2). If it is your first offense within a 10-year period and your alcohol level is tested at .15% or more, Maine law provides for a minimum mandatory jail sentence of 48 hours because of the elevated blood-alcohol level. 29-A M.R.S.A. section 2411(5)(A)(3).


QUESTION: If I Submit To A Breath Or Blood Test, The Result Might Be Above .08%, So Should I Refuse To Submit?

ANSWER: The result of a test showing your alcohol level or drug concentrations will be admissible in evidence against you. 29-A M.R.S.A. section 2431(1). You might therefore consider refusing a test, to avoid providing the police with potentially incriminating evidence against yourself. However, if you refuse to submit to or to complete a test after having been warned by the officer of the consequences of refusing, you will suffer an administrative suspension of your right to operate in the state of Maine for 275 days for the first such refusal, 18 months for a second, 4 years for a third, and 6 years for a fourth such refusal. 29-A M.R.S.A. section 2521(6). And, for a refusal, the suspension that follows a conviction of the crime of operating under the influence runs consecutively to the administrative refusal suspension. 29-A M.R.S.A. section 2451(4). For example, a first offense OUI conviction carries a court-ordered suspension of 90 days. 29-A M.R.S.A. section 2411(5)(A)(2). For those who take a test, having an excessive alcohol level also carries a 90-day administrative suspension. 29-A M.R.S.A. sections 2453(6)(A), 2451(3)(A). If you take an alcohol test, the time your license is suspended administratively is credited toward the court suspension that follows an OUI conviction. 29-A M.R.S.A. section 2453(6)(C). So, if you serve a 90-day administrative suspension, that 90 days will be credited to satisfy the entire court-ordered suspension. However, if you refuse to submit to or complete a test, the 90-day suspension that results from your OUI conviction will run consecutively to the 275-day administrative suspension for the refusal. 29-A M.R.S.A. section 2451(4). As a first time offender, if you had submitted to a test you would have lost your license for a total of 90 days. Because you refused the test, you will lose your license for 1 year. And finally, Maine law calls for additional minimum mandatory periods of incarceration upon conviction for OUI with an alleged test refusal. For a first offense, a refusal OUI conviction carries a penalty of at least 4 days in jail. 29-A M.R.S.A. section 2411(5)(A)(3)(b). This contrasts with no minimum jail term for a tested alcohol level below .15% and a minimum of 48 hours for a tested alcohol level of .15% or above. 29-A M.R.S.A. section 2411(5)(A). For second offense refusals, the law provides for a minimum of 12 days in jail, rather than 7 days for those who take a test, and for a third offense refusal the minimum mandatory sentence is 40 days instead of 30. 29-A M.R.S.A section 2411(5)(B) and (C). The minimum fines are also higher for refusal convictions.


QUESTION: Following An Arrest, Does My License Get Suspended?

ANSWER: Yes. Maine, like many other states, suspends the right to operate even though there has not been a conviction. The officer who arrested you is required to submit his report of your arrest to the Secretary of State within 72 hours. 29-A M.R.S.A. section 2481(2)(B).


QUESTION: How Long Will My Suspension Be?

ANSWER: If you take a breath or blood test which reveals an alcohol leve in excess of the legal limit, and your offense was committed before September 1, 2008, your suspension will be 90 days for a first offense, 18 months for a second offense, 4 years for a third offense, and 6 years for a fourth offense. 29-A M.R.S.A. section 2451(3). If your offense is committed on or after September 1, 2008, and you take a breath or blood test, your suspension will be 90 days for a first offense, 3 years for a second offense, and 6 years for a third or subsequent offense. For second a second or third offense committed on or after September 1, 2008, a license may be reinstated before the entire suspension period has been served, conditioned upon operation with an ignition interlock device (a breath testing device that prevents the vehicle from starting if breath-alcohol is detected), provided the offender satisfies all other conditions for reinstatement (has met DEEP requirements and paid a reinstatement fee) and installs an ignition interlock device in the vehicle to be driven. For second offenders, a restricted license may issue after 9 months of the suspension period have been served, but the device must remain installed for 2 years thereafter. Third offenders must serve at least 3 years of the suspension period and the device must remain installed for 3 years thereafter. For fourth offenders, reinstatement is available only after the full 6-year suspension term has been served, at which point reinstatement is conditioned on use of an ignition interlock device for 4 years. 29-A M.R.S.A. 2508(1). A number of locations have been approved for installation and monitoring of the functioning of ignition interlock devices. A list of these locations is available on the website for the Maine Bureau of Motor Vehicles. Installation costs vary somewhat from site to site, but are in the range of $80.00 to $100.00. In additon to the installation charge, an initial payment of $130.00 is required at the time of installation, representing a security deposit and first month's lease payment. Monthly lease payments of $65.00 are required over the remainder of the term. Thirty days after installation an initial calibration check is required, and additional calibration checks are required every 60 days thereafter. These checks are performed at a cost of approximately $15.00 each. Vendors report that they intend to keep overall costs under $1,000.00 per year (roughly $3.00 per day).

For those who refuse to take a test, the suspension will be 275 days for a first refusal; 18 months for a second refusal; 4 years for a third refusal; and 6 years for a fourth refusal. 29-A M.R.S.A. section 2521(6). Also for those who refuse a test, if they are convicted of OUI for the same occurrance the suspension periods set forth above will be imposed consecutively to the refusal suspension period. 29-M.R.S.A. section 2451(4).

If you still hold a conditional license as the result of a previous OUI conviction, and you take a test that shows any alcohol level, you will be suspended for one year for the conditional license violation. If you refuse a test while still on a conditional license, you will be suspended for 2 years for the test refusal, consecutive to the suspension you will receive if you are convicted of OUI arising from the same occurrance. 29-A. M.R.S.A. section 2457.

Whether you tested or refused to be tested, an additional suspension period of 275 days will be imposed if you had a passenger in the vehicle who was under 21 years of age. 29-A M.R.S.A. section 2451 (5).


If you operated a commercial motor vehicle and refused to be tested, the suspension will be for 1 year, or for 3 years if the vehicle contained hazardous materials, and the suspension will be permanent for a second or subsequent refusal. 29-A M.R.S.A. section 2523 (2).

If you are convicted of OUI or are administratively suspended for a refusal, and you are the holder of a commercial driver's license (even though you were not operating a commercial motor vehicle at the time of this offense) your commercial driver's license will be suspended for the following period: (1) 1 year if you have no prior OUI convictions or refusal suspensions and you took a test on this occasion; (2) 2 years if you have no prior OUI convictions or refusal suspensions, but you refused a test on this occasion; or (3) permanently, if you have a prior OUI conviction or refusal suspension. (Secretary of State Rules For The Suspension Of Commercial Drivers Licenses, Rules 3(D) and 8).

QUESTION: Is There Anything I Can Do About This Administrative Suspension?

ANSWER: Yes. When the Secretary of State sends you written notice that your right to operate has been suspended, you have the right to request a hearing to contest the action taken by the Secretary of State. 29-A M.R.S.A. section 2483.


QUESTION: Will I Be Allowed To Drive Pending My Hearing?

ANSWER: If you took a breath or a blood test, you will be allowed to drive pending your hearing regardless of whether this is a first or subsequent offense. 29-A M.R.S.A. section 2483 (4). If you refused to submit to a breath or blood test, you will not be allowed to drive pending the hearing.


QUESTION: What Are The Issues At This Hearing?

ANSWER: If you took a test the issues are:

(1) Was there probable cause to believe that you were operating or attempting to operate a motor vehicle while having 0.08% or more by weight of alcohol in your blood;

(2) Did you operate or attempt to operate a motor vehicle; and

(3) At the time you operated a motor vehicle did you have 0.08% or more by weight of alcohol in your blood?

If you refused to take a test the issues are:

(1) Was there probable cause to believe that you were operating under the influence of intoxicants;

(2) Were you informed of the consequences of failing to submit to a test; and

(3) Did you fail to submit to a test?

If you refused to take a test and you were the holder of a conditional license the issues are:

(1) Was there probable cause to believe that you held a conditional license, and that you were operating a motor vehicle while having any amount of alcohol in your blood;

(2) Were you informed of the consequences of failing to submit to a test; and

(3) Did you fail to submit to a test?


QUESTION: What Are My Chances Of Prevailing At This Hearing?

ANSWER: The evidentiary standard used to determine whether the initial decision by the Secretary of State should be upheld is proof by a preponderance of the evidence. 29-A M.R.S.A. section 2484(3). This is not a very difficult standard for the State to meet in many cases although it is not impossible for the driver to prevail at the hearing. Of particular importance is the fact that you only need to prevail on one of the three issues which have been set forth in response to the previous question.

"I'm going to rescind the suspension. Your attorney, Mr. Boulos, is an extremely knowledgeable and experienced defense attorney. He knows every avenue to explore in order to provide you with the best possible defense. It's because of his knowledge and experience that you have prevailed here today. It's likely that, on 11/24/98, when Officer Bradley stopped you, that you were drunk, and I would've arrested you, too, and I would've brought you to the station and given you an Intoxilyzer Test. Unfortunately, the State is obligated to dot all it's i's and cross all it's t's in order to make the case against you. By a narrow margin here today, we have failed to do that, and for that reason I am not going to be able to uphold this suspension. This is a second time around for you, ma'am. It seems to me only a matter of time before you hurt yourself or hurt somebody else driving an automobile. Mr. Boulos, thank you very much for the very able defense of your client".

-Department of Motor Vehicles Hearings Examiner at license suspension hearing held on March 1, 1999.



QUESTION: If I Don't Win At The Administrative Hearing Can I Get A Work-Restricted License?

ANSWER: If this is your first offense and you submitted to a breath or blood test you can request that the Secretary of State issue you a work-restricted license. 29-A M.R.S.A. section 2503 (1). You should note, however, that if your blood alcohol concentration was 0.20% or higher, the Secretary of State will not grant your request for a restricted license unless you can present convincing evidence that you have undertaken affirmative steps to address any alcohol problems which such a test result presumptively represents. If you have a previous OUI conviction or if you refused to submit to a breath test, no work restricted licenses are available.


QUESTION: If I Refused A Breath Or Blood Test Can I Reduce The Period Of My Suspension?

ANSWER: If this is your first refusal to submit to testing and you have received a 275-day suspension by the Secretary of State, you can reduce that suspension to 180 days provided that you have completed the requirements of the Driver Education and Evaluation Program (DEEP). 29-A M.R.S.A. 2501(3). However, this reduction is not available to those who previously refused to submit to testing, or to holders of commercial, provisional, or conditional licenses.


QUESTION: What Is A Provisional License And What Is A Conditional License?

ANSWER: A provisional license is granted to applicants who are 21 years or older and and is in effect for the first year following the date of issue. 29-A M.R.S.A. section 2471. More commonly, it is the type of license which is issued to those who are under the age of 21. A conditional license is one that is issued to persons who have been previously convicted of OUI. That type of a license is in effect for a period of 1 year following a person's conviction for a first offense and is in effect for a period of 10 years following a person's conviction for a second or subsequent offense. 29-A M.R.S.A. section 2506. The proscription attached to the conditional license is that a person may not operate a motor vehicle while having a blood alcohol content in excess of 0.00% (otherwise referred to as zero tolerance).


QUESTION: Whether I Submitted To A Breath Or A Blood Test Or Whether I Refused To Submit To A Test, What Do I Need To Do To Get My License Restored?

ANSWER: You must complete the requirements of the Driver Education and Evaluation Program (DEEP) which is administered by the Maine Office of Substance Abuse and pay a $50.00 reinstatement fee to the Secretary of State. If you hold a Maine driver's license, you must also show proof of legal presence in the U.S. and proof of legal Maine residency. Legal presence may be demonstrated with U.S. passport or a birth certificate. Maine residency may be demonstrated with a utililty bill, mortgage bill or the like, bearing your name and street address (not a P.O. Box).


QUESTION: What Are The Requirements Of DEEP?

ANSWER: As of September, 2001, adult offenders must complete a 20 hour Risk Reduction Program (RRP). This program replaces both the Weekend Intervention Program (WIP) as well as the 2 hour Adult Assessment Program (AAP). The RRP applies to all first and multiple offenders regardless of the test result. It also applies to those who refused to submit to testing.

Essentially, RRP embraces a curriculum that assists offenders in gaining insight by assessing their own current status and level of risk for developing substance abuse problems. At the conclusion of the program, offenders are given a preliminary assessment test. Those who do not score well on that test will be referred for a clinical substance abuse evaluation. If the evaluation indicates a need for treatment, the Office of Substance Abuse will require such treatment. The cost of the program is $300.00 which does not include the cost of any evaluation or subsequent treatment.


QUESTION: If I've Already Lost My Right To Operate, How Do I Get To These Programs?

ANSWER: You may request that the Secretary of State issue you a "special restricted license" for the purpose of allowing you to participate in the applicable program or to participate in a counseling or treatment program. 29-A M.R.S.A. section 2505.


QUESTION: Is There Any Way To Avoid Participation In These Programs?

ANSWER: Yes. You can request to participate in the Completion of Treatment Program. Those who make such a request must acknowledge that they have a substance abuse problem serious enough to warrant treatment. If you wish to participate in the Completion of Treatment Program, you are required to go directly to a DEEP certified treatment provider for individual counseling.

The fee for processing the request for participation in this program is $300.00, which does not include the costs charged by the treatment provider. If you are a resident of another state, treatment may be undertaken in your home state.


QUESTION: If I Am Not A Resident Of The State Of Maine Will My License Be Suspended In My Home State If I Am Charged With An OUI In Maine?

ANSWER: Maine has signed a Driver License Compact with all but four states in the United States. These four states are Georgia, Massachusetts, Michigan and Wisconsin. Maine sends an abstract of conviction to all states even if they are not a signatory to the compact. All compact states will suspend the license of any resident who is convicted in Maine. Some non-compact states will also suspend the license of any resident who is convicted in Maine.

Maine has no compact agreements with any state in the United States with respect to administrative suspensions imposed by the Secretary of State. All such suspensions however are recorded with the National Driver Register as required by the Problem Driver Pointer System (PDPS). If your home state accesses the Register it may either suspend your driving privileges or not allow you to renew those privileges until you have satisfied Maine's restoration requirements. This is often the case even if the charge does not ultimately result in a conviction.


QUESTION: If I Am Not A Resident Of The State Of Maine How Do I Satisfy Maine's Restoration Requirements?

ANSWER: You may participate in Maine's 20-hour Risk Reduction Program (RRP), or you may request a waiver from Maine's Office of Substance Abuse to allow you to enter into a course of counseling in your home state.

QUESTION: If I Am Not A Resident Of The State Of Maine And I Fail To Appear To Answer To The Charge Of Operating Under The Influence Will There Be Any Adverse Consequences?

ANSWER: Yes. Maine has signed a Non Resident Violator Compact with every state in the United States except Alaska, California, Michigan, Montana, Oregon and Wisconsin. All members who are a signatory to the compact receive notification of a failure to appear and suspend driving privileges accordingly. In addition, the Maine prosecuting attorneys can request that the court issue a warrant of arrest and can also file a criminal charge of Failure to Appear.


QUESTION: Whether I Am A Resident Or A Non-Resident Of The State Of Maine, What Are The Consequences If I Am Convicted Of Driving While I Am Suspended Either By The Secretary Of State Or By The Court?

ANSWER: If you are convicted of operating a motor vehicle during the original period of suspension imposed either by the Secretary of State or by the Court the minimum fine will be $600.00; the minimum term of imprisonment will be 7 consecutive days; and the minimum license suspension will be 1 year consecutive to the original suspension. 29-A M.R.S.A. 2412-A(3). Moreover, if you are convicted of an OUI and an OAS (Operating After Suspension) and the reason you were under suspension was for a prior OUI, your vehicle will be subject to forfeiture. 29-A M.R.S.A. section 2421.