Maine DUI Defense Law Blog

Maine DUI Seminar – Defense training

The Maine Association of Criminal Defense Lawyers is putting on a seminar to train lawyers to defend DUI cases.  It will be held at the Hilton Garden Inn, Freeport, Maine, on August 22, 2014.  (In Maine that is OUI – Operating Under the Influence.)  I have the honor to be one of the instructors.  I am teaching Field Sobriety Testing.  Other speakers are Jan Semenoff, Matt Nichols, John Webb and Ed Folsom.

Jan Semenoff is coming from Saskatoon, Saskatchewan.  He was a police officer for the City of Saskatoon Police Department where he was specially trained in breath testing.  During his service with the SPD, and after retiring from that department, he was a factory trained breath test technician on many models of breath testing device.  He has published papers on breath testing and other subjects related to alcohol the science of alcohol measurement.  He is recognized as one of North America’s leading experts on the subject of breath testing.  On a personal note,  Jan trained me on the Intoxilyzer 8000, the machine used by police in Maine.  Jan will spend two hours training Maine lawyers about the 8000.

I went to law school with Matt Nichols.  That was a long time ago.  Matt is one of the very top OUI trial lawyers in Maine.  He is perhaps the most innovative OUI defense lawyer I know.  Not surprisingly, Matt will teach Creative OUI Defenses.  His approaches to exposing the attempts of the Intoxilyzer 8000 manufacturers to hide information about the machine make for some of the best and most entertaining cross-examination.  After the witness says “i don’t know” for the fifteenth or twentieth time, jurors start to catch on that the machine may not be as good as the State of Maine and the manufacturer claim.

“Big John” Webb is the state representative for the National College for DUI Defense, Inc.  He practices OUI and criminal defense in York County, Maine.  John will teach the case law update.  This is a summary of the important cases relating to OUI practice in Maine and nationwide.  He is an engaging speaker who holds the attention of the listener, whether it is a room full of attorneys or a jury.  John is one of those guys who leave you feeling glad to have met him.  Despite being a double, below the knee amputee, he golfs in the mid 80’s.

Ed Folsom is another fine OUI defense lawyer.  He was also an adjunct professor at the University of Maine School of Law wher he taught Criminal Procedure.  Ed wrote Maine OUI Law and Maine Driver’s License Suspensions, Revocations and Related Offenses (non-OUI).  He will teach us about BMV Administrative Law.

None of these people are being paid for this work. There is some reimbursement for travel expenses. They are doing it because they believe the justice system works better for all of us when the lawyers defending people have a better understanding of how to defend people accused of crimes.

When the government prosecutes citizens they bring tremendous power of the state to bear on the accused.  The government has a host of scientists including chemists and DNA technicians, and paid investigators (police).  They are all professional witnesses.  Most defense lawyers do not readily have these resources.  Most cannot call up a chemist to ask questions about breath testing.  They do not have an entire police force to seek out witnesses.  Most defendants cannot afford to hire these services to advise their lawyer.  This means that lawyers must have a strong working knowledge of all of the subjects that will come up at trial.  In OUI cases this includes chemistry, human physiology and biology, pharmacology, constitutional law, police procedures, breath, blood and urine testing procedures and equipment, field sobriety testing, and the specialized laws that relates to DUI/OUI.  It is through seminars like this one that lawyers learn these skills.


Maine OUI – Once a Felony, Always a Felony

On August 1, 2014, Maine is extending the look back period for some OUI’s.  A look back period is the amount of time that a previous DUI/OUI can count as a prior offense.  In most cases the look back in Maine was ten years.  If a person is charged with a new OUI, and there was a prior conviction for OUI withing ten years, the new charge is a second offense.   A second offense is a misdemeanor.  If there were two prior convictions within ten years the new charge is a third offense.  A third offense is a felony.

There was an exception to this rule.  If the prior conviction was a felony OUI because the driver caused serious bodily injury or death to another person, the look back period is for life.  This means that any new OUI charge is a felony, even if the prior offense is older than ten years.  This lifetime look back did not apply to the person who had a felony OUI conviction older than ten years, where the felony was based solely on the number of old OUI convictions.  Back before 2009, a fourth offense OUI within ten years was a felony.  So a person who was OUI and caused serious bodily injury or death would face a felony for any new OUI, regardless of when it occurred.  A person with a fourth offense felony OUI conviction more than ten years old would not face a felony charge for a new OUI.  That rule changes as of August 1, 2014.

The new rule is that if a person has any prior felony conviction for OUI, any new charge is also a felony.  I think this rule ignores the realities of the court system.  A prior OUI is only a valid prior conviction if there was a constitutionally proper waiver of counsel.  The fact of the court system is that many judges do not adequately protect a defendant’s right to counsel.  As an example, in 2001, in response to a motion I filed to exclude a prior conviction because the defendant was denied constitutional rights to counsel, the judge (honestly) declared that the Bangor courts had NEVER conducted a proper waiver of counsel.  They only way to tell if the waiver was valid is to look at the transcript. But the tape from which transcripts can be made are only kept for seven years.  Over time memories fade.  If we start going back 20 years or more, people will be convicted of felonies who were denied proper advice regarding having an attorney.  The right to a lawyer is about as fundamental a right as there is.  Without a lawyer most people stand no chance defending themselves.

There is, however, a legislative push to limit the ability of prosecutors to plea bargain an OUI charge even a worse idea.  At least one legislator says he wants to prohibit prosecutors from reducing an OUI charge to a Driving to Endanger charge.  That sort of legislative meddling with the prosecutors’ discretion is wrong for several reasons.

We give prosecutors broad discretion in deciding what charges to bring against a person for many reasons.  The most important reason is that District Attorneys are dealing with people, not cold words on a page.  People and their situations are as varied as there are people in the world.  District Attorneys must be given the discretion to make the punishment fit the crime and the criminal.  Where the punishment is too harsh or the consequences too severe for the situation, the District Attorney must have the discretion to charge a lesser crime.  Sometimes justice requires the DA to press for the very highest penalty possible.  Sometimes people will learn from their mistakes without a conviction that might ruin their career or put their family in poverty.  In those cases a reduced charge might be a better idea.

As an example, imagine two drivers stopped for OUI.  On has a .09 BAC and the other a .14 BAC.  Immediately after the arrest the .09 driver seeks out an alcohol counselor and deals with the problems that had him out driving at .09.  He loses his license through the BMV for the same 150 days he would be suspended if he were convicted for OUI.  The .14 driver, however, does nothing.  He makes no changes in his life.  He continues to drink to excess.  The law says they are both subject to the same sentence if convicted of OUI. Should the prosecutor have the discretion to treat the two differently?  Should the .09 driver who is unlikely to be OUI again be treated the same as the .14 driver who learned nothing?

A prosecutor’s discretion to make these decisions is recognized in the law.  Prosecutors have broad discretion to decide when to charge a particular crime, and when to charge a lesser crime.  “Prosecutorial discretion” is a rule that makes it impossible to sue a District Attorney for prosecuting someone who is later acquitted of the crime.  If DA’s could be sued every time they lost a case, they would soon be broke and afraid to prosecute anything.

The fact is that many people charged with DUI already get the message, even before they are convicted.  For them a Driving to Endanger charge is sufficient.  They are not going to commit another OUI (the numbers for repeat offenders is below 10%).  And they will still lose their license for the same amount of time that they would lose it for an OUI.  They still have a criminal record.   Insisting on an OUI conviction in those cases is overkill.

Prosecutorial discretion also conserves the prosecutors’ resources. If charges cannot be reduced many more people will go to trial rather than take an OUI conviction.  Some of those people will be acquitted.  So ultimately, more people will walk away without a conviction if prosecutors cannot plea bargain for DTE’s.

The DA’s have limited budgets, just like any other government official.  They can only try so many cases before the money runs out.  The DA’s must be the ones to decide whether they want to try child molesters, or OUI cases that would otherwise plead guilty to Driving to Endanger.  That decision cannot be made in the ivory towers of the state legislature.

It is easy for legislators to claim they are solving a problem by locking people up.  They don’t see the individuals.  They only see numbers.  It takes a wise legislator to recognize that most prosecutors have years of experience, and can tell when a charge reduction is a good idea.  Prohibiting DA’s from exercising discretion is unwise.  It may look like the legislator is doing something about a problem, but that just isn’t the case.  What it really does is make more of a muddle of the criminal justice system. The legislators are simply too far from the people involved to make those decisions.

Federal Drug Sentences Lowered

The United States has the sorry distinction of locking up a higher percentage of its citizens than any other country.  It is not that Americans break the law more than people in other countries.  We don’t.  The problem lies with the idea that putting people in prison is the cure for every act we believe to be criminal.  The idea that being “tough on crime” by locking up people will make crime go away is ingrained in our politicians’ minds.  That solution to crime utterly failed to win the war on drugs.  The only thing it got us is a huge prison population at the cost of billions of dollars each year to catch, prosecute and warehouse Americans.  The vast majority of these prisoners are non-violent offenders who pose little danger to the community.

Two sets of drug laws contributed the most to this problem of imprisoning too many of our non-violent fellow citizens.  The first was a set of mandatory minimum drug laws based on drug quantity.  The second was the Federal Sentencing Guidelines.

Congress passed laws creating mandatory minimum sentences for drug crimes based on drug quantity.  Before 2011 a person who sold 500 grams or more of cocaine powder faced a mandatory minimum sentence of 5 years in prison.  Five kilograms resulted in a 10 year mandatory minimum.  And these drug amounts were not based on the amount of drugs the person had at any one time.  The Guidelines added up the amount of drugs sold over time.  A one time sale of 500 grams of coke or the sale of two grams each week for a year both resulted in a 5 year minimum sentence.  Twenty years of these sentences did nothing to reduce the traffic in drugs.  Worse, these laws were both arbitrary and racially discriminatory.

While trafficking in 500 grams of cocaine powder triggered the 5-year mandatory minimum sentence, mere possession without sale or intent to sell crack cocaine triggered the same sentence.  This was based on the ideas that crack was more addictive than powder coke, that crack users and sellers were more likely to have firearms and engage in violence, and that crack had a greater effect than powder cocaine on unborn children.  Research by the Federal Sentencing Commission later proved these ideas to be untrue.  Nonetheless, for years after Congress kept the 100 to 1 ratio.  Five grams of crack or 500 grams of cocaine powder resulted in the same sentence.  There is no justification for this difference in punishment.  The folks selling powder were selling far more dosage units of cocaine for far more money.  When they got caught they served far less time in prison.

This powder-crack distinction was racially biased, as well.  Statistically, minority citizens are no more likely than whites to sell drugs.  Culturally, however, powder cocaine was more popular among whites than among minorities.  The result was that minority defendants were more likely to be sentenced for selling crack and whites for selling powder cocaine.  The minority defendants got far longer sentences for selling lesser amounts of drugs.

This lock’em-up-and-throw-away-the-key philosophy was also present in the Federal Sentencing Guidelines.  The Guidelines are the the rules used in Federal courts to establish sentencing ranges in criminal cases.  For years the courts treated them as mandatory.  Judges could only sentence a person under the Guideline level in limited cases.  In 2005 the Supreme Court finally held that they were advisory, and that judges were not bound by the ranges of sentences established in the guidelines.  Unfortunately, in many cases Federal judges still assume that Guideline sentences are reasonable.  Guideline sentences are all to often the default sentence.

The Guidelines for all drugs were particularly high.  Most of the people sentenced under those drug guidelines were non-violent offenders.  Often they got longer sentences than armed bank robbers or rapists.

The result of these laws was a huge prison population.  Since it costs well over $20,000 every year to keep a person in prison, these prison populations are costing us billions of dollars.

Between 1995 and 2007 the Federal Sentencing Commission submitted four reports to Congress about the crack-powder disparity as well as other drug guideline problems.  The Commission recommended reducing the ratio between crack and powder, and in later reports recommended reducing drug punishments generally.  These recommendations were based on the Commissions studies that showed these sentences being imposed were far too harsh, and did not result in the crime reduction sought.

Finally, in 2007, Congress began to act.  New laws reduced the sentences for crack by an average of about 15 months. The following year those changes were made retroactive.  Prisoners serving sentences under the old law could ask for a sentencing reduction.  If the judge found the person did not pose a danger to the community the sentence was reduced.  The average reduction was 26 months.  Later government studies showed people who got sentence reductions were no more likely to commit crimes after release than people who served full sentences.

Nonetheless, the disparity between crack and powder was still too high.  Sentences for other drugs were too high.  Mandatory minimums and huge sentences for mere possession of crack were still warehousing too many people.

In 2010 Congress passed the Fair Sentencing Act.  The Act reduced the ration between crack and powder to 18 to 1.  This means it now takes 28 grams of crack to trigger the 5-year mandatory minimum sentence and 280 grams for a 10-year mandatory minimum sentence.  The mandatory minimum sentence for mere possession of crack was repealed.  The Act is expected to reduce sentences imposed after its passage, on average, by 27 months.  It will save over $40 in the next five years.  As enacted, the FSA did not apply to people already sentenced.

Finally, it looks like that problem will be partially fixed.  On July 18, 2014, the Sentencing Commission voted to make the changes to the Guidelines made by the FSA reducing drug sentences, retroactive.  Although Congress must still approve that vote, it looks like it will pass.  As of November 1, 2014, it looks like the Guideline related changes of the FSA will be applicable to prisoners sentenced before the FSA.

Like other retroactive reductions, the prisons will not simply open the doors and let people go.  Prisoners must apply for reductions.  Judges will consider each case to determine whether the person is likely to be a danger to the community.  Violent offenders will not be released early.  To give judges time to make these decisions the first releases will not occur until November 2015.  Sentence reductions are expected to affect over 43,000 prisoners nationwide.  Some 12,000 crack prisoners will receive an average reduction of 37 months.

The only work left to be done is for Congress is to make the changes regarding mandatory minimums in the FSA retroactive.  Right now any reduction cannot go below the mandatory minimum.  People serving five years or more for just possessing (not selling) crack cannot be reduced below the mandatory minimum of 5 years.  Congress needs to act to make the mandatory minimum law changes of the FSA retroactive.  You can help by writing your Representative and Senators.

A leader in this fight is the group called Families Against Mandatory Minimums. For more information about this problem and what you can do, visit Families Against Mandatory Minimums’ website.


Is a DUI Breath Test an Illegal Search?

In DUI cases police routinely order people to take breath tests. For years no one gave much thought to whether such orders are legal. The 2013 case of Missouri v. McNeely may be changing that situation.

In McNeely the Supreme Court held that a warrant was required before a blood test could be taken against a person’s will. The argument went that sticking a needle into someone’s arm and taking their blood to analyze it invades a person’s privacy. Protecting personal privacy from government intrusion is the purpose of the Fourth Amendment. That amendment says that individuals are protected from government intrusion “in their persons, houses, papers and effects” from unreasonable searches.

As a general rule a search is unreasonable unless the police first obtain a warrant for that search.  The warrant must be based upon probable cause to believe the search will turn up evidence of criminal activity. A warrant is in order from a judge or magistrate that says there is enough evidence to believe a search will produce evidence of a crime, and therefore a search is allowed. When police search without a warrant it is presumed to be an unreasonable search unless it fits into a recognized exception to the warrant requirement.

Exceptions to the warrant requirement are limited. In most cases probable cause to believe the search will turn up evidence of a crime is still required. The police are not required to obtain a warrant, however, because of either urgent time limitations or other emergency situations. An example of such an emergency situation is when police enter a house to pursue a fleeing armed robber who they are chasing. Clearly, there is no time to get a warrant.

Other examples include entering a burning house to look for injured occupants, and entering a crack house where there is reason to believe the people inside are trying to dispose of the drugs before the police arrive. Other exceptions are searching a person for weapons or contraband when they been arrested, or searching their car when there is a possibility that they might pull a weapon out of the glove box.

Perhaps the most common exception to the warrant requirement, however, is consent. If a person consents to a search, a warrant is not required. Consent is not valid consent if it is coerced or obtained by trickery or deceit.  Consent must be freely given.

So how does this apply to breath tests? Several years ago, in a railroad employee drug and alcohol testing case, the Supreme Court decided that a breath test was a search, just like a blood test. That case was Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989). In Skinner the court said:

“We have long recognized that a ‘compelled intrusion into the body for blood to be analyzed for alcohol content’ must be deemed a Fourth Amendment search. In light of our society’s concern for the security of one’s person, it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interest. Much the same is true of the breath-testing procedures required [under federal regulations]. Subjecting a person to a breath test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search. Skinner, 489 U.S. at 616–17.”

So it only makes sense that if a warrant is required for a blood test (McNeely) because it is a search, a warrant is also required for breath test.

Almost every state has enacted an implied consent law. Maine is one of those states. Implied consent laws say that if you drive on the roads in that state, you are presumed to have given consent to a test of your blood, breath or urine, for alcohol or drugs. If you fail to take a test when police seek a blood, breath or urine test, there are usually very serious consequences. At a minimum, your license will be suspended. In Maine you also face extra jail time and higher fines if you are convicted of the OUI charge. In some states, and in federal parks and other federal locations, it is a separate crime if you refuse a test. So is your “consent” to submit to a blood, breath or urine test because of implied consent law freely given consent? At least one court says “no.”

The Supreme Court of Arizona recently held in State v. Butler, 302 P.3d 609 (Az. 2013), that a juvenile driver who was read the implied consent consequences for refusal was coerced into giving consent to a blood test. This makes sense. When you take a test because you will lose your license or go to jail if you don’t take it, your consent to take the test is not voluntary. It is coerced by threats.

According to the Supreme Court a warrant is required for blood tests in DUI cases because a blood test is a search that invades personal privacy.  The Supreme Court also says that a breath test is a search, just like a blood test.  So if a warrant is required for a blood test, and a breath test is a search just like a blood test, shouldn’t a warrant be required for a breath test?  This issue is being raised in more and more states. I am fighting the issue here in Maine.

Supreme Court case is changing DUI defense

A little more than a year ago the United States Supreme Court decided a case that is having a significant effect on DUI cases around the country. In April, 2013, the Court decided the case of Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). This post, and several posts to come, will look at McNeely and discuss its effect on DUI cases. This post will provide a background to that discussion.

Police in the state of Missouri stopped Mr. McNeely because he was driving erratically. After field sobriety tests he was arrested for DUI. The officer took him to the station for a breath test. Mr. McNeely refused that test. The officer then took him to the hospital where he was given a blood test, despite his refusals. The officer did not obtain a warrant for the blood test. Mr. McNeely’s blood test result was over the legal limit.

Mr. McNeely’s lawyer filed a motion to suppress the blood test result. He argued in that motion that the police were required to get a warrant to draw Mr. McNeely’s blood, before they drew his blood. Because they did not obtain a warrant that blood draw violated the Fourth Amendment to the United States Constitution. Mr. McNeely’s lawyer asked the court to exclude the test because of that constitutional violation.

The Missouri court judge who heard the motion to suppress agreed with Mr. McNeely’s lawyer. The test was ordered suppressed, meaning that the State of Missouri could not use the test result at trial. The State of Missouri appealed that decision to the Missouri courts. Both the Missouri Court of Appeals and the Missouri Supreme Court agreed with Mr. McNeely’s lawyer and the first judge. They upheld the order that the test should be suppressed.

The State of Missouri then asked the United States Supreme Court to hear the case. The Supreme Court agreed and issued a writ of certiorari. A writ of certiorari is an order to a lower court, in this case to the Missouri Supreme Court, ordering that court forward the case to the United States Supreme Court so that the case may be heard.

In the United States Supreme Court the State of Missouri made a very limited argument. They asked the Supreme Court for a rule that said a warrant is never required in a DUI case because alcohol dissipates (goes out of the body) so fast that there is no time to get a warrant. This exception to the warrant requirement is called an “exigency” or an “exigent circumstance.” Exigency circumstances are limited exceptions to the warrant requirement. Other exigent circumstances include searching a motor vehicle without a warrant because the vehicle can be easily moved, and seizing contraband without a warrant, such as drugs, because the drugs are in plain sight.

The United States Supreme Court refused the State of Missouri’s request. The Court noted that previous cases discussing the dissipation of alcohol and exigency occurred when it was very difficult and time-consuming to obtain a warrant. Today modern technology makes it very easy to obtain a warrant quickly. The Court agreed with the Missouri courts that in this case a warrant was required and the test result should be excluded at trial.

Despite this decision, police still routinely obtain blood tests without attempting to get a warrant. Lawyers around the country are challenging this practice. Even more interesting, is that the McNeely ruling arguably applies to breath tests as well as blood tests. In upcoming blogs I will analyze the McNeely case, discuss its possible impact on DUI cases, and look at some of the cases around the country that rely on McNeely.

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