By Rudman Winchell Attorney David Walker
We all know the feeling of seeing the flashing blues in our rear-view mirror while driving. For most of us, feelings of anxiety and/or consternation immediately result when we realize we are being pulled over. If the stop occurs at night, particularly on a weekend, regardless of the reason you are pulled over you can expect to be asked: “How much have you had to drink tonight.” This question is routinely asked of drivers during traffic stops even if the officer has no reason to suspect that you have in fact been drinking. If you have been drinking and so inform the officer, you can expect additional questions and that your answers and gestures will be scrutinized. Your movements will be observed and analyzed. The officer will watch you retrieve your license, registration, and proof of insurance. I cannot tell you how many police reports I have read in which an officer notes that a suspect “fumbled” for his or her license or seemed uncoordinated in obtaining these items. As a practical matter, it is not a bad idea to keep your registration and proof of insurance together in your glove box or in an otherwise easily accessible location. If the officer concludes that there is probable cause to believe that you are impaired, you will be asked to step out of the vehicle and participate in field sobriety tests.
It is almost always in your best interest to cooperate fully with the officer in attempting to complete any field sobriety test that he or she administers. You should always be polite to the officer and avoid any attempts to joke or make light of the situation. Officers often note such conduct as evidence of intoxication. If you are wearing uncomfortable or impractical shoes, ask the officer for permission to take the field sobriety tests barefoot.
The three field sobriety tests that are most frequently administered, and that are authorized by the National Highway Traffic Safety Administration, are: (1) the horizontal gaze nystagmus (HGN) test, (2) the walk and turn, and (3) the one-leg stand. During the HGN test, you will be asked to track the officer’s pen (or some other stimulous) while he or she moves the object in front of you. The purpose of this test is to determine whether your eyes show signs of involuntary rapid movement, or nystagmus, while you are attempting to track the object used by the officer in conducting the test. The “walk and turn” is a test in which you will be asked to walk and imaginary line, taking a specific number of steps before pivoting, and walking back to the starting point. The one-leg stand test asks the participant to stand on one leg with his or her other leg elevated while counting until the officer instructs you to stop. All of these tests involve a number of other details and instructions that the test taker is required to memorize and follow while the test is in progress.
The walk and turn and one-leg stand test are referred to as “divided attention tests.” You will be asked to assume a position and maintain it while instructions are provided. The purpose of this is to determine whether you can listen and retain instructions while simultaneously maintaining the position that you are asked to assume while the officer explains the tests. A number of factors other than intoxication can influence your performance on these tests, including illness, problems with coordination, attention deficit disorder, and routine nervousness.
Once you have completed the field sobriety tests, the officer may ask you to rate sobriety on a scale of one to ten, with one being completely sober and ten being completely intoxicated. Many people make the mistake of believing that their answer should correlate with the number of drinks that he or she has consumed. For example, many people assume that if they had two drinks, they should indicate that they are a two on the scale. This is a mistake. This “self-assessment” question is, in essence, a trick question because the only correct answer is one. Many people mistakenly believe that to be guilty of OUI in Maine, the state must prove that your blood alcohol level is a .08 or higher. Not true. The state need only prove that you are impaired to the slightest degree. Depending on the circumstances, a person may consume two drinks over an extended period of time and be completely sober, in which case the correct answer to the self-assessment question is one. If you provide any answer other than one to this question, it will be treated as an admission that you have operated your vehicle while impaired which could result in an OUI conviction even if you later take the intoxylizer test and the result indicates that your blood alcohol level is below .08.
The final stage of the process is the administration of a blood, urine, or breath test. If you are fortunate, the officer will release you after you have completed the field sobriety tests. There is a good likelihood, however, that after you have completed the field sobriety tests, the officer will take you into custody and transport you to the police department or the jail for the purpose of administering a test of your blood alcohol content. The officer will have the choice of requesting a urine, blood, or a breath test using the intoxylizer. Most often, the officer will elect to administer an intoxylizer test. Many people unfamiliar with Maine’s OUI laws believe that it is in their interests to refuse the intoxylizer test. You should never refuse to submit for the intoxylizer or breath test. Under Maine law, the refusal to submit to a blood or breath test will result in an automatic suspension of your license for a period of time that is longer than the suspension imposed for an OUI conviction. Additionally, the State can prosecute you for driving under the influence even without a blood, urine, or breath test. Your refusal to submit to a blood, urine, or breath test will be used against you at trial. If you are ultimately convicted, you will face tougher penalties than you would have otherwise faced as the refusal will count as an aggravating factor.
Remember, if you are stopped for driving under the influence, always cooperate with the officer to the best of your ability. Participate in all tests that are administered. Do not refuse to submit to a blood, urine, or breath test if one is requested. If you are ultimately charged with OUI, it is vitally important that you consult with an attorney that has experience in OUI defense immediately. If you wait to contact an attorney until a week before your trial, your attorney’s ability to defend you will be limited. OUI is a specialized area of law. While many attorneys “handle OUI cases on occasion,” there are few that have the requisite training, experience, and understanding of the complex issues involved to provide you with a formidable defense.