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OUI Defense Lawyer: Bangor, Maine

Bangor Daily News
Monday, April 09, 2007

Bangor lawyer 'certified' in national OUI Law

 Wayne Foote is the first attorney in Maine to be certified a drunken driving defense lawyer.

BANGOR - Wayne Foote knows a lot about drunken driving. He understands the anatomy, biology, chemistry, physiology and toxicology involved in how the body absorbs and eliminates alcohol and other drugs. He comprehends how the equipment used to measure blood alcohol levels works, and he understands its limitations.

More importantly, Foote knows that whether a person is convicted of driving while under the influence of intoxicants in Maine sometimes hinges on legal questions such as search and seizure, due process and illegal interrogation.

His expertise in these areas earned the Bangor-based lawyer accreditation from the National College for DUI Defense in Montgomery, Ala.

Some states refer to the charge as DUI, or driving under the influence. The wording of Maine’s law is "operating under the influence of intoxicants," or OUI.

Foote is the only lawyer in the state and one of 36 in the nation to earn the certificate, which is akin to the board certification a doctor can earn in a specific field. Earning the certificate was not easy.

Foote attended classes once or twice a year for eight years. He then took a detailed written exam similar to the bar exam.

In some ways, it was more than the bar exam, he said, but worth the expense and the effort. "I get to make the Constitution come to life," said Foote, 56, in an interview last week. "Science, law and police procedure all come into play in these cases. They are pretty complex to defend and I find them fascinating."

Not surprisingly, the outcome of an OUI charge is vitally important to defendants and sometimes victims as well.

"People’s jobs are on the line and their freedom is on the line," Foote said. "For many of my clients, it’s their first brush with the law, and they need someone to guide them through the process."

He said that 100 percent of his practice is focused on criminal law, with about 80 percent of the cases he handles involving an OUI charge. He takes 25 to 30 cases to trial each year, most of them involving a drunken-driving charge.

He estimates that he wins 60 percent to 65 percent of jury trials and 75 percent to 80 percent of jury-waived trials.

"Statistics don’t predict the outcome of any one case," he said. "I have to look at the ‘triable’ issues. If there are no triable issues, you don’t want to put your client through that. ... I can’t make any guarantees. These are hard cases" to win.

Going to trial also can be expensive, Foote said. Jury trials can cost $12,000 or more depending on how long a trial lasts, the number of expert witnesses needed to testify and other factors. Foote does not take every case. He said that he could help just one in four of the people who seek his advice.

One of the people Foote helped was E*** N*****, 35, of Narragansett, R.I. N***** was arrested Oct. 6 at the Blackwoods Campground in Acadia National Park. He was charged with operating a motor vehicle in the park with a blood alcohol level in excess of 0.08, the legal limit in Maine, and of operating a motor vehicle in the park while being incapable of safely operating it.

N*****’s blood alcohol level was 0.10 percent, according to court documents. Because the park is federal property, criminal cases are handled in U.S. District Court in Bangor. Drunken driving on federal property is considered a petty offense under federal law. U.S. Magistrate Judge Margaret Kravchuk in February found N***** not guilty on both charges after a bench trial in federal court in Bangor.

She said prosecutors failed to prove beyond a reasonable doubt that N***** "operated a motor vehicle at a time when his consumption of alcohol rendered him incapable of safely operating the same."

The judge also found that the federal standard for proving a driver was impaired was higher than the state law applied in Maine.

In her written ruling she cited testimony from a government witness who said the breath test result was subject to a margin of error, so N*****’s blood alcohol level could have been as low as 0.075 and as high as 0.125 percent.

Because the test was given nearly an hour after N*****’s last beer, the alcohol from that last drink had not yet been absorbed into the defendant’s bloodstream at the time of the operation. It takes 30 minutes to an hour for a man weighing 180 to 200 pounds to absorb alcohol into the bloodstream. N***** weighed 190 pounds, according to court documents.

Many of those facts, Kravchuk said, came out during Foote’s cross-examination of the prosecution’s expert witness.

The issues Kravchuk outlined in the N***** case are the ones Foote sees most often in the cases he takes.

The "gross inadequacy" of the breath tests and the inexact science of how alcohol is absorbed and eliminated from the blood are common triable issues, he said. He said he also understands the toll drug and alcohol abuse take on individuals, families and society.

In addition to evaluating the case, Foote said, he knows that suggesting a client seek help to evaluate a possible substance abuse problem sometimes is part of his job.

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Law Offices of Wayne R. Foote, P.A. has published this website to provide information and suggestions, not specific legal advice. The publication of this site does not create an attorney-client relationship between the firm and visitors. Visitors should consult competent counsel in their jurisdictions because local laws and rules may vary from state to state.