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As the title to this article correctly suggests, operating under the influence (OUI) is a two-pronged crime in Maine. The government has two options when attempting to obtain a conviction for OUI. The standard of proof is proof beyond a reasonable doubt. The government attempts to convince the fact-finder (a jury or a judge, that is your choice) that you were operating or attempting to operate a motor vehicle while under the influence of alcohol (and/or drugs—this article will only address alcohol) or with a breath or blood alcohol level of 0.08 or higher.

The Per Se Prong

If the government is able to convince the fact-finder that you operated or attempted to operate a motor vehicle while having a breath or blood alcohol concentration of 0.08 or higher, you will be found guilty of OUI regardless of whether or not that same fact­ finder is not convinced that you were under the influence .

Under The Influence

Maine law is particularly tough on what it means to be under the influence of alcohol. Unlike other states, our government is not required to prove that you were drunk, intoxicated or unable to safely operate a motor vehicle. Our government need only prove, beyond a reasonable doubt, that your mental or physical faculties were impaired to the slightest degree or any extent by alcohol while you were operating or attempting to operate a motor vehicle.

Even if the fact-finder rejects the breath or blood test, you will be found guilty of OUI if the fact-finder is convinced, beyond a reasonable doubt, that you were under the influence.

The government typically attempts to prove this prong through the testimony of the arresting officer. Performance on field sobriety tests will be a large part of the officer’s testimony because these are almost impossible to perform to the trained officer’s “satisfaction”. But, the officer will also be asked about other things such as: erratic operation, difficulty producing requested documents, bloodshot/glassy eyes, slurred speech, difficulty exiting the vehicle, unsteady gait, etc. A skillful and experienced OUI defense attorney will be able to neutralize if not negate the officer’s testimony regarding all of the foregoing.

Am I Over The Legal Limit?

Let us start with the “per se” prong. If you have been charged with OUI, you need a defense attorney with the skill, experience and knowledge to “beat the test result”. I have been doing that for over two decades. I described methods for doing so in previous blogs and in my Sample OUI Case Results.

As far as knowing whether or not you may be at or over the limit before you decide to drive, here are some DONT’S:

Do not rely on online charts.
They are often based upon Widmark Formula calculations. Dr. Widmark’s Formula was first published in 1932. Although the Widmark Formula is still recognized in the scientific community, it is based upon “estimated ranges” of levels of blood (not breath) alcohol concentrations. Likewise, breath testing, at best, produces “estimated ranges” of blood or breath alcohol concentrations .

Do not rely on anecdotal information.
You cannot consume one beer or one shot or one glass of wine or one mixed drink per hour and remain under the legal limit. The key question is how much ethanol did you consume? Was the beer a 12 oz. bottle or a 16 oz. glass? Was the alcohol content 5% or 8%? Did the mixed drink contain 1 oz. of liquor or 2 oz.? Get the picture? Are you male or female? How much do you weigh? Food intake? Liver function? These are factors that go into the equation of whether or not you are at or over the legal limit of 0.08. There isn’t a reliable APP that will answer this question.

Am I Under The Influence?

If you are sitting in the driver’s seat with your keys in your hand and asking yourself this question, the correct answer is probably “Yes”.

It is not against the law to consume alcohol and subsequently operate a motor vehicle . I have obtained countless acquittals as well as reduced charges for folks charged with OUI. But, that has come with a cost to each client in the form of legal fees, unspeakable anxiety to my folks, fines for reduced charges, etc. This may appear to be an article that is contra to my own business interest. So be it. The best defense to an OUI charge is simply to not drink and drive.

It is the one fool proof defense.

I’m the second best.

If you have been charged with OUI, give me a call for a free consultation at 207-879- 4000.

Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).

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