Southern Maine Criminal Lawyer Blog

Supreme Court case is changing DUI defense

Published on: June 17, 2014 | by Webb Law Firm

supreme-court-300x237 A little more than a year ago the United States Supreme Court decided a case that is having a significant effect on DUI cases around the country. In April, 2013, the Court decided the case of Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). This post, and several posts to come, will look at McNeely and discuss its effect on DUI cases. This post will provide a background to that discussion.

Police in the state of Missouri stopped Mr. McNeely because he was driving erratically. After field sobriety tests he was arrested for DUI. The officer took him to the station for a breath test. Mr. McNeely refused that test. The officer then took him to the hospital where he was given a blood test, despite his refusals. The officer did not obtain a warrant for the blood test. Mr. McNeely’s blood test result was over the legal limit.

Mr. McNeely’s lawyer filed a motion to suppress the blood test result. He argued in that motion that the police were required to get a warrant to draw Mr. McNeely’s blood, before they drew his blood. Because they did not obtain a warrant that blood draw violated the Fourth Amendment to the United States Constitution. Mr. McNeely’s lawyer asked the court to exclude the test because of that constitutional violation.

Extending the DUI lookback – The Maine legislature gets it right

Published on: February 16, 2014 | by Webb Law Firm

drunk-driving-300x225 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

Published on: February 8, 2014 | by Webb Law Firm

drunk-driving-300x200 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.

Molly

Published on: September 24, 2013 | by Webb Law Firm

Molly is a dangerous drug
Miley Cyrus is dancing with her, Kanye West sings about her. So who is Molly? Molly is a fairly common street drug that causes hallucinations and euphoria but also promises a terrifying and horrific crash.

In addition to the drug’s advertised purity and potency, celebrity endorsements are boosting its popularity. What’s not as widely advertised is the fact it’s dangerous, addictive and even deadly.

Molly is short for chemical molecule, referring to a purer form of 4-methylenedioxymethamphetamine (MDMA). The same white powder as what’s in the drug Ecstasy – raises serotonin levels in the brain and induces feelings of euphoria, pleasure, empathy and closeness, often leading to unprotected sexual activity. The high can last three to six hours and the crash that follows is worse than any hangover you’ve ever experienced.

THE TIDE HAS SHIFTED…..

Published on: September 20, 2013 | by Webb Law Firm

The Supreme Court recently decided a case Missouri v. McNeely, 567 U.S. ____ (2012) holding that police officers cannot normally conduct blood-alcohol tests without a warrant. After being stopped by a police officer for speeding and crossing the centerline the officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath.

McNeely admitted to the officer that he had consumed “a couple of beers” at a bar, and he appeared unsteady on his feet when he exited the truck. The officer conducted field sobriety tests on McNeely who performed poorly on the tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC).

The officer then placed him under arrest and transported McNeely to a nearby hospital for blood testing. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution.

DUI breath testing and radio frequency interference

Published on: June 13, 2013 | by Webb Law Firm

breathtest-300x199-1 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.

A Bad Day of Driving Then Drinking

Published on: October 24, 2012 | by Webb Law Firm

The author of one of the greatest home runs in baseball history, thirty-seven years ago Sunday, was arrested for DUI/OUI/DWI on Monday, October 24th. Hall of Fame catcher Carlton Fisk, a god to Red Sox fans like me after his homerun in Game 6 of the 1975 World Series, was arrested in New Lenox, Illinois, refused to take a breath test and had an open bottle of vodka in the truck which was located in a cornfield.

If you are sitting in your vehicle in the middle of a cornfield and are charged with DWI/OUI/DUI here in Maine, you need to consult with a lawyer to help defend your case. How will the DAs Office prove this case beyond a reasonable doubt? Operation of a motor vehicle is an element of the crime that must be proven beyond a reasonable doubt. Was there actual operation? Did the driver admit to operation? In Maine, operation requires a person to either have power or attempt to put power to the wheels. 29-A M.R.S. § 2401(6); State v. Sullivan 146 ME 381 (1951). Is the vehicle in park, or was it in gear with the driver’s foot on the brake?

How will the government overcome the subsequent drinking issue? If there is an open bottle of liquor in the vehicle with the driver, how will they prove that any alcohol onboard the driver wasn’t consumed post-accident? Do they even know how long the driver was sitting in the cornfield?

John Webb Speaks at NCDD Summer Session

Published on: July 30, 2012 | by Webb Law Firm

I am proud to report that this past weekend I was a Demonstration Speaker and Group Instruction Team member at the Summer Session of the National College of DUI Defense, July 26th to the 28th, hosted by Dean George Stein and held at Harvard Law School in Cambridge, Massachusetts. www.NCDD.com

The National College of DUI Defense (NCDD) is a professional, non-profit corporation dedicated to the improvement of the criminal defense bar, and to the dissemination of information to the public about DUI Defense Law as a specialty area of law practice. The Summer Session is an annual national gathering of many of the finest DUI/DWI/OUI defense lawyers who meet to teach, learn and exchange ideas about defending citizens accused of operating under the influence of alcohol and drugs.

This has been one of the highlights of my legal career. I was so honored to be asked by Dean Stein to participate and even more honored to serve. This was my first time addressing the entire college, and my third time acting as an instructor. I am always amazed at how much I learn at these sessions, especially while teaching, and how gratifying it is to help others. Thanks to the entire NCDD Family for the support.

Canada allows entry if you have a DUI conviction.

Published on: February 29, 2012 | by Webb Law Firm

For years I have advised clients that a single DUI will bar entry into Canada for ten years and two convictions will bar you for life. Starting March 1, 2012, some of that will change. Immigration Canada has bowed to pressure from the Canadian tourist industry and has modified Canada DUI rules. Those businesses were losing millions of dollars every year because customers were being turned back at the border.

Under new policies people with one DUI conviction that is not too recent will be permitted to entry to Canada with a DUI on a Temporary Resident Permit (Canada TRP DUI) without a fee. People with more than one criminal conviction, whether they are DUIs or other crimes, will still be barred unless they obtain a TRP or a certificate of rehabilitation under the old rules.

You should still plan ahead and learn more about Canada entry requirements for DUI. It is not clear yet how recent or how serious a DUI must be to bar you. You should contact Immigration Canada at the Point of Entry where you plan to enter Canada to determine their interpretation before you go. It used to be that Canada does not allow DUI entry, but that is changing.

Why you need a DUI specialist lawyer

Published on: February 28, 2012 | by Webb Law Firm

dui-attorney-300x236 Many people I talk to think a DUI is something any lawyer can handle. As an experienced DUI specialist lawyer I can tell you that is not true. I have many hours of specialized training that most lawyers do not have. The following case is a good example of why a specialist is needed.

The case is State v. Soucy, 2012 ME 16. Mr. Soucy was speeding and was upset after a fight with his girlfriend. He was stopped by police and given field sobriety tests. He had balance troubles on the balance tests and the HGN test showed jerking of his eyes. He was arrested and blew a 0.00 on the Intoxilyzer. The cop asked him if he took medications and he told him he took oxycodone and hydrocodone. Mr. Soucy told police he wasn’t impaired by drugs, just tired and sick with the flu. They called in a Drug Recognition Technician to perform a DRE test.

A DRE test is a battery of tests and examinations. The technician examines the subjects eyes, blood pressure, muscle tone, balance, temperature and and other things. (There is a lot of doubt in the scientific world about the reliability of these tests, but that is for another blog.) The test showed pinprick pupils, HGN, rigid muscles and bad balance.