Maine DUI Defense Law Blog

A Breath Test is a Search

In 2013 the Supreme Court held in Missouri v. McNeely, 133 S.Ct. 1552 (2013), that a blood draw is a search requiring a warrant or a warrant exception. Since then I’ve been arguing that the same logic applies to a breath test. I based this argument on Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) that held a breath test is a search. Skinner did not address the warrant issue because of special circumstances associated with regulation of the railway industry. Up until now I’ve had little success. Judges are reluctant to change decades of practice, even if that practice was unconstitutional. Last week I finally won a round in this fight.

In last weeks case my client was given field tests and then asked to voluntarily come down and take a breath test. He asked the natural question, “What if I don’t want to?” The officer told him that he would be arrested and taken to jail if he didn’t agree to take the test. If he agreed to take the test the officer promised to bring him home and not to jail, regardless of the test result. I moved to suppress the breath test for a lack of a warrant or warrant exception.

In a motion alleging a warrantless search, the state has the burden of proving there was a valid warrant exception. Recognized warrant exceptions are search incident to arrest, consent, exigent circumstances and a few others. The Supreme Court, in Arizona v. Gant, 129 S.Ct. 1710 (2009), limited the search incident to arrest exception to the extent that it cannot apply to breath or blood tests. Exigent circumstances are situations where it is extremely impractical for the officer to obtain a warrant in time to conduct a meaningful search, or some sort of emergency. In my case the state did not argue exigent circumstances. It is unlikely that any such argument would have been successful. Instead they focused on consent.

The state made two consent arguments. First they argued that the Implied Consent law was actual consent. Second, they argued that he actually consented to voluntarily take the breath test.

Every state has an Implied Consent law. That law says you will consent to a test or bad things will happen. Usually the bad things are license suspensions and telling a judge or jury that you refused a test when you take the case to trial. In some states it is a crime to refuse a test. The state argued that this was automatic consent that could not be revoked. The judge in my case did not agree. She found that consent to search for Fourth Amendment purposes must be actual and voluntary.

The state’s actual consent argument was in two parts. First, the cop denied that he told my client he would go to jail if he refused to volunteer to take the test. Fortunately, we had a very credible witness who heard the whole thing. That witness was clear about what she heard, and equally important, she was clear about what she did and did not remember. The officer was not so credible. His story has some inconsistencies, and things he did admit saying suggested there was talk about going to jail that he was denying. The judge believed the civilian witness and not the officer.

This left only whether my client actually consented to take the test. The judge held that a threat of jail was coercion that made the consent involuntary. She suppressed the breath test.

While this is a good start, we are not out of the woods in all cases. Many judges are holding that when an officer reads a person the Implied Consent consequences of refusing, that this is not coercion. Their logic is that the officer is simply advising the person of the legal consequences of refusing, and not engaging in threats. The problem with this logic is that if relies on the fantasy that the police and the lawmakers are unrelated. If the legislature passes a law that makes threats for asserting one’s constitutional rights, it is a threat by the government. Period. It doesn’t matter if the threat is communicated by a police officer or a state representative, it is still government punishment for asserting a constitutional right. It is coercion by the government.

Drinking one drink per hour and driving means trouble – usually a DUI

As a DUI defense lawyer I talk to people every month who were arrested for DUI. An alarming number of those people are truly surprised at their blood-alcohol level. Many tell me they “paced themselves” to one drink per hour. For most people this pace is a recipe for disaster.

A Brief History of Alcohol Calculations.

Scientists have studied alcohol for many years. In the early years of the 20th century a Swedish physician, Dr. Widmark, did extensive research. Based on his research he devised a formula for calculating blood-alcohol levels based on the amount of alcohol consumed, the person’s weight, their gender, and the amount of time that passed since first drinking. This formula then predicts a range for the person’s blood-alcohol level or concentration (BAC.) This is the formula that is used in virtually all smart phone calculators or the “drink wheel/calculators” sold. It is also the basis for the claim that one drink per hour will protect you from driving under the influence.

The formula was undoubtedly accurate for Widmark’s specific test subjects in the 1920’s and 1930’s However, variations in body composition, differences between laboratory and real world drinking patterns, and variations in how we measure drinks make calculations based solely Widmark’s formula unreliable.

Widmark’s Subjects were Skinny Kids.

The amount of water in the body is a big factor. The more water you have in your body, the more the alcohol is diluted. Widmark’s test subjects were students. This meant that they were younger than the average population. They were also Europeans living in the 1920’s and 1930’s. On average they were much thinner than today’s Americans. Whether you attribute it to fast food or other causes, Americans (even college students) are fatter than Europeans living 80 or 90 years ago. And the older we get, the fatter we are likely to be. Since fat tissue has less water than muscle, we have proportionately less water than Widmark’s kids. That means the same amount of alcohol will be diluted less and will give us a higher BAC.

For women this is more of a problem. Women generally have proportionately less muscle than men, so they have a higher fat proportion. They generally weigh less than men for a given height. Women have even less water per pound than most men. So the same amount of alcohol gives women higher BAC’s.

Widmark Drinking Sessions Were Shorter and Steadier

When graphed Widmark’s drinking sessions generated nice smooth drinking curves. The graphs of the BAC’s went up smoothly, plateaued nicely and then dropped off smoothly. This was because his subjects usually got their drinks all at one time. That way the body would begin absorbing and continue to do so until it was all in the system. Modern social drinking rarely involves drinking all of your drinks at the start of the night. We drink a drink and order another. It takes time. The result is a series of absorption events, not one smooth curve. Technically, the Widmark formula and the smart phone calculators can accommodate this pattern, but it requires us to know the exact time each drink is consumed. Imagine being at a bar or the Christmas party. How likely is that sort of timekeeping? Every variation makes the calculations less reliable.

Widmark Knew Exactly How Much They Drank

Widmark carefully measured the number of drinks his subjects drank. He knew the amount of alcohol to a small fraction of an ounce And his idea of a “drink” was different. For Widmark, a drink is 12 ounces of 5% beer, 1-1/4 ounces of 80 proof (40%) liquor or five ounces of 12% wine. In most cases, the drinks we get do not match that formulation. While canned or bottled beers often come in 12 ounce portions, the alcohol content can vary considerably. Restaurants almost never pour a 5 ounce glass of wine – they pour four to the bottle because they come out evenly. That is a bit more than six ounces of wine per drink. And again the alcohol content is not always 12%. If you are drinking mixed drinks, do you know exactly how much alcohol the bartender pours? If you mix them yourself are you measuring? Probably not. So a drink for Widmark purposes isn’t always a true drink. When you are measuring alcohol in fractions of an ounce, a half an ounce here or there can really throw off the calculations.

So don’t rely on the one-drink-per-hour rule. For most people having one drink every hour and then driving will get you arrested for DUI.

Police stopped my car. Why?

One question I hear from people charged with DUI is, “Was it legal to stop me?” Tonight I want to talk about some situations in which the police can stop us as we go about our business.

The best starting point is the Fourth Amendment to the United States Constitution. The Fourth Amendment is part of the Bill of Rights. It says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

When the police stop us in our cars, they are seizing us (our person) and our car (one of our effects). The difference between and illegal seizure and a legal seizure is one of reasonableness. If the seizure is reasonable in the circumstances, it is legal. If the seizure is unreasonable, it is illegal.

One of the two most common situations in which a seizure is reasonable is when the officer has a reasonable suspicion that a person might be breaking the law, based of facts known to the officer. This is called reasonable and articulable suspicion. Examples include a person weaving across lane lines or driving a grossly varying speeds. This conduct may support a reasonable belief that the driver is impaired. The second common situation is when the officer observes or discovers facts showing that the person has actually broken the law. This is called probable cause. Examples are a car doing 50 mph in a 30 mph zone, or driving without headlights at night. I discussed both of these situations in detail in my post, “How Much Evidence Do Police Need To Stop You.” I don’t need to rehash those situations here.

There are situations in which police can stop a person where there is no suspicion of criminal activity. Generally, these situations involved the police officers role in assuring public safety or other police duties.

One common situation in which people are stopped without actual suspicion that the person has broken any law is at a roadblock. Roadblocks serve many purposes. Customs and Border Patrol agents often conduct roadblocks near the borders with Canada or Mexico. The purpose of these roadblocks is to interdict illegal entry and smuggling. The Supreme Court holds these roadblocks to be generally lawful in United States v. Martinez Fuente, 428 U.S. 543 (1976). The Court held that the government interest in stopping smuggling and illegal aliens justified a brief detention without probable cause or reasonable suspicion. In other words the Court balanced the governmental interest in stopping illegal entry against the private interest in being free from being stopped briefly. The Court was careful to stress that the detention must be brief. Specifically, the detention can last only long enough to determine whether the person might be smuggling or be an illegal alien. Any further detention requires reasonable suspicion of criminal activity or probable cause that a crime was committed.

A second type of roadblock approved by the Supreme Court is the DUI/DWI/OUI roadblock. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Court balanced the public safety interest in catching drunk drivers against the same personal right to be free from detention. Again, personal rights lost the battle. The Court, however, listed various factors in a roadblock that are necessary to make the detentions constitutional. These factors generally are designed to lessen public fear at being stopped late at night and to reduce the amount of discretion that officers may exercise, thus preventing police for just stopping Hispanic drivers.

Another exception to the reasonable suspicion/probable cause requirement is when the police are acting as a “community caretaker.” If an officer sees a person bleeding or slumped over the wheel unconscious, the officer can generally stop and investigate to insure the person is safe. There are limits on this exception. Police cannot use trumped up community caretaker claims to justify an otherwise illegal seizure.

Another situation is where the officer is performing a normal police function and comes in contact with a person. An example is a car accident. Police are tasked by law to investigate car accidents. They have a right to detain and questions people who are involved in an accident.

Consent is another situation where a police encounter does not require any level of suspicion. If the officer pulls up next to you without the blue lights on and rolls down the window, and you then roll down your window and talk to the officer, that is a consensual encounter. If the officer observes slurred speech, the smell of drugs or similar indications of criminal activity, you can be detained based on that suspicion. If, however, the officer takes some action that reasonably makes you think you must talk to the officer, such as signalling you to roll down your window, it is not longer consent.

These examples do not cover every situation in which police may stop or question you, but they cover the major areas besides suspicion of criminal activity. If you are charged with a crime, you should talk to an attorney. That attorney will undoubtedly look at the issue of the reasonableness of the stop under the Fourth Amendment. In most cases, if the stop was unreasonable it is illegal, and the evidence that was obtained because of that illegal stop cannot be used against you.

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.

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