In a previous post I discussed the basics of OUI/DUI charges in Maine as well as the penalties associated with those charges. I’m using the terms OUI and DUI interchangeably to make it easier for people that are used to different terms for the same thing. It is important to understand that in Maine it is always officially OUI. In this post I’m going to discuss issues that come up when evaluating an OUI/DUI charge in Maine. The first issue that I’m looking at when I review a case or meet with a potential client is the stop itself. Law enforcement usually refers to this phase as “vehicle in motion.” The stop is exactly how an individual comes face-to-face with law enforcement. There are many different types of stops; there are traffic infraction stops, erratic driving stops, “tipster” cases where one a call is placed to law enforcement about the vehicle, roadblock stops, and even some cases where there basically is no “stop,” because law enforcement is detaining a person who is no longer in his or her vehicle. The stop is the first crucial part of the case because it’s where a) your Constitutional rights first come into play and b) the various circumstances of the stop can influence later aspects of the case in the Defendant’s or the State’s favor. I’m a big believer in the idea that fact patterns don’t exist in isolation, but have to be evaluated in their entirety. Every case tells a story and the stop is the first opportunity to tell a different story from what law enforcement says happened. It is important to understand that for every different of type of stop there may be different legal precedents that can used to support your case.
The second issue that I’m looking at is initial contact between law enforcement and the driver, this is known by law enforcement as “personal contact.” The officer is going to be using all of his or her skills and training to observe and interact with the driver to detect any signs of impairment. Signs of impairment can include appearance, odor of intoxicants, and performance on so-called “divided attention tests,” where the officer will ask for your license and registration while simultaneously asking questions about your destination, etc. This second phase is another critical part of the story of the case. What observations did the Officer make or equally important what observations did the Officer not make. In many reports you will see references to odor of alcohol, glossy eyes, impaired speech, fumbling with license or registration, or poor answers to questioning. Again, I am trying to examine this phase carefully and place it into the larger context of how I view the case.
The third issue occurs outside the vehicle and usually involves the performance of field sobriety tests, also know by law enforcement as the “pre-arrest screening.” This is probably the most misunderstood and often damaging part of the case. It is my opinion that by this point an Officer has already made up his or her mind on the issue of arrest. More specifically, based upon the Officer’s beliefs about the stop and the personal contact, I believe that in the vast majority of cases the decision to arrest has already been made. The administration of field sobriety tests is almost solely then to gather evidence to support the arrest. It is important to add that stepping out of the vehicle and performing field sobriety tests may both be lawfully refused. Both actions are voluntary and law enforcement is counting on the fact that most people comply, often mistakenly thinking that they must comply. A caveat is that if the Officer orders a person out of the vehicle he or she should always politely follow his instructions but the distinction between voluntarily doing something and being ordered to do so is very important legally. There is never a situation where a driver must complete field sobriety tests. The three standardized field sobriety tests that have been validated by the National Highway Traffic Safety Administration are the Horizontal Gaze Nystagmus Test, the Walk and Turn, and the One Leg Stand. Each test could probably justify an entire post but there are some basics. The test are only validated even instructed and performed in the standardized manner prescribed by NHTSA. Unfortunately they are rarely instructed or administered in the standardized manner. Despite this, the three tests remain essentially the gold standard for generating probable to arrest a driver. Understanding every aspect of field sobriety testing is crucial to the evaluation and defense of OUI charges.
When taken in total, the three issues that I have addressed above are what I’m looking when evaluating an OUI case up to the point of arrest. Understanding all three phases before the arrest and how they relate to each other is a foundational part of defending OUI/DUI charges. In a subsequent post, I’ll discuss chemical testing in Maine OUI/DUI cases.