Maine DUI Defense Law Blog

Extending the DUI lookback – The Maine legislature gets it right

Much to my surprise the Maine Legislature voted overwhelmingly to reject extending the lookback for OUI’s from ten years to fifteen.  In my last post I agreed with the prosecutors that a better idea was to make it a felony for anyone who gets an OUI, and who previously had an OUI conviction.  Extending the lookback would not affect many problem drinkers.  Treating prior DUI felons as felons for the next DUI limits the extended lookback to people who have demonstrated themselves to be a danger to others.

I suspect our representatives also looked at the added cost of jailing people and decided it was a bad bargain.  The state budget is a mess and there is little money for jailing more people.

Extending the DUI look back in Maine

The State of Maine is debating whether to increase the look back time for DUI convictions. The look back is the amount of time that must pass after a DUI before the next one is considered a first offense. The present look back in Maine is 10 years. That means if you get a DUI today, and you had one within the last 10 years, this one counts as a second offense.

The legislature is considering whether to extend the look back to 15 years. The justification offered by the legislator who submitted the bill is that people who have DUI’s should be treated very harshly if there is ever a subsequent offense. He did not offer any information to suggest that there was a problem by limiting the look back to 10 years. It seems he pulled the number out of a hat.

Another approach, one urged by the District Attorneys, is that the normal look back for misdemeanor DUI’s should remain in 10 years. But anyone convicted of a felony DUI (DUI with serious bodily injury or death, or a third or subsequent offense DUI) should have every subsequent DUI treated as a felony.

On this one I happen to agree with the District Attorneys. My experience is that problem drinkers who drive are likely to be caught with a 10 year look back. A 15 year look back would do very little to make the roads safer.  DUI felons, however, are more likely to pose a continuing problem. Allowing for all subsequent DUI’s to be felonies would make the roads safer by allowing extended suspensions for the most dangerous drivers.

Finding myself in agreement with the District Attorneys is a rare position for me. In this case, however, they seem to have hit the nail on the head.

Extending the look back would affect anyone for whom 15 years had not passed. This means that if you had a DUI 11 years ago, and the 15 year look back is enacted, it will apply to you. The only exception is that people who are facing DUI charges at the time an extended look back is enacted will not have that extension applied to them. A pending first offense will not become a second offense.

New DUI/OUI Ignition Interlock Device law in Maine

The Maine Legislature recently changed the suspension penalties for OUI. These changes went into effect December 1, 2013. They affect only those OUI’s that occur after midnight, November 30, 2013.

Some of the changes affect only a few people. The length of suspension for some repeat offenders increased. Also, some repeat offenders will get their licenses back sooner if they install and Ignition Interlock Device (called an IID.) These changes only affect a few people because these repeat offenders make up a very small percentage of the people who are charged with operating under the influence.

One change will affect many more people. This change applies to first offenders. When you look at the facts about first offenders, you have to ask why the politicians thought they needed these changes.

First, the changes: The suspension for a first offense OUI in Maine is increasing from 90 days to 150 days. This change applies to both administrative suspensions for having an alcohol level of .08% or more, and for OUI court convictions.

An administrative suspension is a suspension that is imposed by the Bureau of Motor Vehicles (BMV), often before the person charged with OUI ever goes to court. A court suspension is imposed by the court when a person is convicted of OUI. In all cases, some of the BMV suspension will be credited to the court suspension. In a few cases all of the BMV suspension be credited to the court suspension.

Another change is the addition of an IID requirement for first offenders. A first offender who is convicted of OUI can get a work-only license after 100 days of the 150 suspension. To qualify for this work only license the person must complete an alcohol program and pay a reinstatement fee.

If that same person completes the alcohol program, pays a double reinstatement fee, and installs an IID for four months, he or she can get a full-privilege license after only 30 days. For people who can afford it, this is an attractive alternative to suspension. For the poor who cannot afford an IID it is a disaster for the entire family.

An IID costs $80 to install. It costs $65 per month to rent it. It costs $40 to have it taken out of the car. A person or family that earns less than 150% of the Federal Poverty Level can get it for half-price. That’s $17,235 for a single person. That’s a maximum gross income of $331 per week. After taxes that is about $275 per week. Or less. So an IID is going to coast that person 5% or more of their take home pay. If they still have a job after the 30 days without any license. If the person earns less than that maximum, it is bigger part of take home pay.

On top of this is the $300 for the alcohol program and the $100 for the reinstatement fee. That means to get the license back at 30 days a driver must pay $545 within the first month. ($300 alcohol school, $100 reinstatement, $85 installation and $60 for one month’s rent.) That is almost two weeks pay for a person right at the 150% FPL. For someone working at a minimum wage job it may be close to an entire month’s pay.

So for many people the choice will be rent, food or license. And that is no choice at all because the all income probably goes if the license is lost.

This law is going to make people homeless.

You have to imagine that the idea behind this law is that it will save lives. If the IID for first offenders kept drunk drivers off of the road, it might well be worth it. Unfortunately, research by the State of California indicates this law is not going to save anyone.

California found that a first offender’s likelihood of reoffending within one year of conviction was less than 2%. That less than 2% number included people who did not attend an alcohol program – the researchers found that the alcohol programs significantly reduced the rate of reoffending. And the new DUI’s they counted were within a year of conviction. Since Maine drivers do not get a license back without an alcohol program, and the new IID rule only lasts three months, it is safe to say that the number of first offenders who would commit a new OUI within the three month IID period is less than 1% of first offenders.

So we are imposing potentially crippling costs on 99% of the people to prevent the other 1% or less from driving under the influence. That is like using hand grenades to get rid of mice in your house. It may be effective, but the cost is way to too high.

Another point that the legislature apparently did not consider is there are better ways to identify that bad 1%. The California researchers found that of people who reoffended, the vast majority had a driving record showing two or more accidents within the past two years.

So instead of punishing everyone for the bad behavior of a very few, maybe the Legislature should rethink this IID rule. Maybe they should require it for first offenders who have had two or more accidents in the past year. Lets use mouse traps instead of hand grenades. Let’s stop the criminals instead of punishing the families of the innocent.

DUI breath testing and radio frequency interference

Wikipedia defines Radio Frequency Interference as:

Electromagnetic interference (or EMI, also called radio-frequency interference or RFI when in high frequency or radio frequency) is disturbance that affects an electrical circuit due to either electromagnetic induction or electromagnetic radiation emitted from an external source.[1] The disturbance may interrupt, obstruct, or otherwise degrade or limit the effective performance of the circuit. These effects can range from a simple degradation of data to a total loss of data.”

This article discusses RFI and breath testing machines.

Very simply put, breath testing machines like the Intoxilyzer 8000 test for breath alcohol levels by measuring the amount of infrared light that is absorbed by a breath sample.  The theory is the more light that is absorbed, the higher the level of alcohol in the sample.  The machines generally consist of an infrared light source – in the case of an Intoxilyzer 8000 that is a heated wire.  The light shines through a breath sample and a detector measures the amount of light at a particular wavelength that passes though the sample.  A counter then measures the amount of light detected.  The difference between the amount sent into the chamber and the amount out allows the alcohol calculation.  Each stage of this process involves an electrical circuit with components that can be affected by RFI.

The manufacturers of breath testing machines recognize that RFI can affect the result – that RFI can cause false high readings.  They all take some steps to protect against RFI.  The Intoxilyzer 8000 uses what they call a RFI detector.  When RFI is detected, the machine is supposed to stop the test and print an error message flagging RFI.  Many experts believe the machines do a poor job of detecting RFI.

Experts say that the antennas for the RFI detectors used in today’s breath testing machines are virtually unchanged from those of thirty years ago. Those antennas were designed to detect police radio transmissions.  Thirty years ago – before everyone was carrying cellphones and when there were far fewer computers and personal electronic devices- this may not have been a bad system.

But this is today.  Everyone has a cellphone.  This includes the police officer giving the test.  Cellphones do not operate on frequencies anywhere close to police radio frequencies.  The detectors have trouble seeing them.  But they still affect circuits.

Anyone who doubts that cellphones can affect important circuits should read “Turning Off IPhone Critical to Pilots Citing Interference” by Alvin Levin published in the Bloomberg News.   Mr. Levin’s article documents incidents where airliner navigation devices were affected by cellphone RFI. The problem is real.

Cellphones transmit signals, even when you are not actively talking on the phone or texting.  When the cellphone is on it is constantly pinging cell towers to find the best signal.  This happens about once every seven seconds or less.  That signal can affect your breath test.  When you talk on the phone the signal is constant.

In the hundreds of breath test videos I watch, very, very few officers turn off their cell phones.  I  see people talking on cellphones during breath tests.  But the detectors never say they found RFI.  The test just goes on.  I don’t think it is laziness.  I think it is bad information from the manufacturers and bad police training.  It is over reliance on outdated RFI detection technology.

And cellphones aren’t the only sources of RFI.  Computers are often located right next to the breath testing machines.  Today’s police departments are full of electronic devices that transmit signals.  And those signals are not necessarily on the police radio frequencies where the RFI detectors can find them.

Breath tests are very important evidence in the eyes of a judge or jury.  They need to be very, very accurate.  If cellphones and other devices are in the breath test room, that accuracy is potentially compromised.

Intoxilyzer 8000 – Is it really alcohol specific?

For years defense lawyers and breath testing experts claimed that the breath test machines (like the Intoxilyzer 5000) read other substances on your breath as alcohol and give a false high reading. These substances are called “interferents.” Examples of interferents are paint fumes, carburetor cleaner, and substances found in many beauty salon supplies. For just as many years the the corporation that made the machines (CMI, Inc.) and the Maine’s breath test staff claimed that was just a defense lawyer’s gimmick. They said the machines were specific for alcohol, would reliably detect interferents, and would subtract any interferents from the final reading.

So who was right? Was it a lawyer’s gimmick? Were the people whose jobs depended on the machines being right covering something up?

A couple of year’s ago CMI came out with a new model, the Intoxilyzer 8000. The State of New Mexico was an early buyer. Maine just bought about a hundred of them. The books CMI gave to New Mexico with the 8000 model said this about the old 5000 model:

The “INTOXILYZER 8000 overcomes the only downfall of the [Intoxilyzer 5000]‘s method of quantifying a subject’s breath alcohol concentration. That is, when using infrared light at a single wavelength it is possible that interferents present within the breath also absorb at the selected wavelength. The effect of this of course being that abnormally high breath alcohol readings may be reported by the device.”

Finally, they admitted it! But the only reason they did was to sell a new machine they claim fixed a problem they always said never existed.

This year I attended a three-day seminar in Toronto about the new machines. Besides lawyers there were breath testing experts, chemists, biochemists and bio-engineers in our group. Many of these experts doubt the claim that the new machine is any better than the last one at detecting interferents.

Simply put the new machine supposedly detects inteferents by measuring the light absorbed at two wavelengths (at around 3 microns and 9 microns) instead of one wavelength for the old machine. The ratio of absorption at the two is compared to the ratio for ethanol (that’s the alcohol we drink.) If it doesn’t match the alcohol ratio, an interferent may be present, and the machine supposedly subtracts it or shuts down.

They lied about the old machines for years. I have no reason to believe them now. In fact, I have reasons not to believe them. Many substances that absorb light in the machine’s 3 micron range also absorb it in the 9 micron range. Examples are isopropanol (found on the breath of diabetics), D-Limonene (found in many cleaners and disinfectants), 2-Butoxyethanol (found in a range of products from cosmetics to paint) and diethyl ether (found in commercial degreasers.) People who are regularly exposed to these chemicals such as beauticians, janitors and mechanics may have abnormally high levels in their system due to exposure at work. These people may be at risk of falsely high breath tests from the new machine.

The problem is the company that makes these machines is very secretive. They do not allow anyone to look at the computer programs that run the machines (the source code.) They will not sell a machine to anyone who wants to test them to see if they work properly.

You have to wonder what they are trying to hide.