Understanding Maine DEEP

The Driver Evaluation and Education Program (DEEP) is a requirement prior to reinstatement for people whose license has been suspended for an alcohol or drug related motor vehicle offense.  Typically, The DEEP is a three-part program.

Part One – 20 hour Risk Reduction Program which is the education component of DEEP.  The focus of the education portion is on high-risk alcohol and drug choices. The cost for the Risk Reduction Program is $300.00.  This typically takes place over the weekend, and is offered in many locations throughout the state.

Part Two – Most likely, after completing part one (education), participants will be referred to a DEEP-certified service provider to receive a clinical substance abuse evaluation.

Part Three – If a substance abuse issue is detected at the above-mentioned evaluation, the individual will be referred to counseling, which is required in order to satisfy the Maine DEEP requirements.

If your license has been suspended as a result of a charge or conviction for Operating Under the Influence, it will be a requirement that you complete DEEP (and pay a $50.00 reinstatement fee) before your license can be reinstated.

Typically, it is best to start the Maine DEEP as soon as practical after being charged with Operating Under the Influence.  For example, on a first offense OUI, an individual is eligible for an Ignition Interlock Device after 30 days of the suspension has been served, and the individual has completed DEEP and paid the reinstatement fee.

If you’ve been charged with a driving offense, such as Operating Under the Influence or Driving to Endanger, contact Attorney Eric Thistle today.

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

Am I Required to Take the Breathalyzer?

Under Maine law, if there is probable cause to believe a person has operated a motor vehicle while under the influence of intoxicants, that person shall submit to and complete a test.  19-A §2521.  Typically, a law enforcement officer will ask a person to submit to a breath test, unless the breath test is unreasonable, in which case they may request a blood test.

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If a driver refuses to submit to a test, the Bureau of Motor Vehicles (BMV) has authority to suspect your license immediately, without a hearing.  Usually, this automatic suspension of your license is for 275 days (for a first refusal), 18 months (for a second refusal), 4 years (for a third refusal), or 6 years (for a fourth refusal).  If a driver refuses to take the test, the suspension from the BMV will run consecutive to the suspension imposed by the court, if the driver is eventually found guilty of Operating Under the Influence.

In addition to the increased BMV suspensions, the Court will also impose harsher penalties for refusing to submit to a test. For example, on a first offense OUI with a refusal, the mandatory minimum punishment requires 96 hours in jail, a $600.00 fine, and a 150-day loss of license. Without the refusal, the mandatory minimum would be a $500.00 fine and 150-day loss of license.

It is a common misconception that the State needs a breath test over .08 to convict a driver of Operating Under the influence.  In reality, the State can prove the crime of Operating Under the Influence simply by proving that the driver’s “mental or physical faculties are impaired however slightly, or to any extent. State v. Worster, 611 A.2d 979 (Me. 1992).

There are many ways to challenge the charge of Operating Under the Influence.  An experienced OUI attorney can attempt to suppress the initial motor vehicle stop, challenge the accuracy of the breath test, or argue that the testing officer did not follow proper protocol, just to name a few.  Call Attorney Eric Thistle today for a free consultation.

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

Not Guilty Verdict – Gross Sexual Assault (Class B Felony)

Recently, Attorney Thistle and Attorney Winling received a Not Guilty verdict for their client on the charge of Gross Sexual Assault (Class B) in the York County Superior Court, in Alfred, Maine.

The client, a gentleman from Portland, Maine, was accused of engaging in a sexual act with a woman while she was unconscious or otherwise physically incapable, and who had not consented to the sexual act.

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There are many ways to charge Gross Sexual Assault under the Maine statute (17-A §253).  In this particular case, the State’s prosecutor specifically chose to allege that the woman was unconscious or otherwise physically incapable of resisting the sexual act.

Attorney Thistle and Attorney Winling were able to elicit testimony on cross examination from the woman which directly contradicted what she told the officers who responded to her original 911 call.  Once it was established that she had made inconsistent statements, the attorneys for the defendant were able to further impeach her credibility, and ultimately get the woman to say that she no longer remembered important details of the event.  Through the effective use of cross examination, the defense was able to later argue that the woman’s story did not make sense, and that it was more probable that she had consented to the sexual act (through her actions).

In all criminal proceedings, the Defendant always has the presumption of innocence until the State over comes that presumption.  To overcome the presumption, the State must prove, beyond a reasonable doubt, that every element of the crime was committed.

If you, or someone you know, has been charged with a crime, you are presumed innocent.  Even if you feel as though you are guilty, the State may not be able to prove it.  Before you plead guilty, or admit, to any crime, contact Attorney Eric Thistle for a free consultation.

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

What is Hearsay?

Hearsay is a statement made by someone out of court, which is then used in court, to prove what was said in the statement.

For a more technical definition, see Rule 801(c) of the Maine Rules of Evidence, which says, “Hearsay means a statement that: (1) The declarant does not make while testifying at the current trial or hearing; and (2) A party offer in evidence to prove the truth of the matter asserted in the statement.”

Generally, hearsay is not allowed to be introduced into evidence pursuant to Rule 802 of the Maine Rules of Evidence.  However, there are many exceptions to this rule. The exceptions can be found ­here­ in Rules 801(d), 803, and 804.

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What is “Marital Property” in Maine?

Marital property in Maine means all property acquired by either spouse after the commencement of the marriage, regardless of whether title is held individually or jointly.

Under Maine law, the following is not considered marital property: (1) property acquired by gift, bequest, devise or descent; (2) property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent; (3) property acquired by a spouse after a decree of legal separation; (4) property excluded by valid agreement of the parties; and (5) the increase in value of property acquired prior to the marriage, and the increase in value of a spouse’s non-marital property.

In a proceeding for divorce or legal separation, the court will set apart each parties non-marital property, and then divide the martial property equitably. The court views marriage as a partnership and shared enterprise, and will put less weight on which spouse purchased the property, and focus more on how the division can be most equitable. Equitable division does not mean equal division, and in most circumstances the property division will not be completely equal.

When dividing the marital property, the court will consider the following factors: (1) the contribution of each spouse to the acquisition of the property, including the contribution of a spouse as a homemaker; (2) the value of the property set apart to each spouse; (3) the economic circumstances of each spouse at the time of the division.

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In certain situations, non-marital property can become marital property during the marriage.  First, the property may be commingled over time, making it difficult to determine if it’s non-marital or marital property.  Second, the non-marital property may become marital property through the process of transmutation. Transmutation occurs when the parties display a clear intent to treat their non-marital property as marital.

If you find yourself contemplating a divorce or legal separation, contact Attorney Eric Thistle to discuss options to protect your marital and non-marital property interests.

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

What is an Arraignment?

Your arraignment is the first court appearance on a misdemeanor criminal charge.  In Maine, misdemeanors are classified as Class D and E crimes.

At this point you have been charged with a crime, but are presumed innocent. At your arraignment you will be required to watch a video explaining all of your rights. The judge will likely ask you if you understand your rights before he or she excepts your plea.  You have a variety of important rights, and it’s important that you watch the video to fully understand these rights. If you have any questions, please make sure you consult a qualified Maine criminal defense attorney before entering a plea.

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Understanding Probation in Maine

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Not all criminal convictions are eligible for probation under Maine criminal law. 17-A§1201(1).  Generally, there are caps on the maximum amount of time a person may be on probation for any given conviction, however, the legislature has carved out exceptions for certain serious crimes. 17-A §1201(2).

When a person is on probation in Maine, the judge may impose certain conditions that they believe will help the probationer lead a law-abiding life. 17-A §1204.  Every person on probation will have a condition that they refrain from committing new criminal conduct. Id. The court will also require a monthly payment between $10.00 and $50.00 be made to the Maine Department of Corrections. Id. In addition to the aforementioned required conditions, the court also has discretion in order many other conditions.  Probation is not appropriate for everyone, make sure you are fully aware of all of the conditions before signing any document agreeing to be placed on probation. It is wise to consult an experienced criminal defense attorney prior to voluntarily commencing any term of probation.

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I Got An OUI – What Do I Do Now?

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Being charged with the crime of Operating Under the Influence (OUI) can leave people feeling scared, embarrassed, and unsure of what to do next.

First, if you have not already done so, respectfully assert your right to remain silent.  Depending on your particular circumstances, it may be too late. However, if the police have any follow up questions, it is wise to decline to speak with them.

In Maine, Operating Under the Influence is a very serious charge.  Being a primarily rural state, we all rely heavily on our license and personal vehicles.  The Bureau of Motor Vehicles (BMV) will likely be sending you a suspension letter shortly after you have been charged with OUI.  Make sure you confirm with them that your current address matches the address on file.  You can be charged with additional crimes if you are found to be operating a vehicle while having a suspended license, even if you did not receive notice that your license was suspended.  It is your responsibility to confirm that the BMV is sending mail to the correct address.

At some point you need to decide whether you are going to (1) hire an attorney, (2) apply for an unknown attorney appointed by the court, or (3) defend yourself.  It goes without saying, but people who defend themselves are at a severe disadvantage.  The State’s prosecutor is an experienced attorney, who wants to get a conviction, a fine, and possibly put you in jail. It is highly recommended that you hire an experienced criminal defense lawyer with specific expertise defending operating under the influence charges.

Interview multiple lawyers, and don’t be persuaded by fancy websites. Instead, ask about their recent experience with OUI cases. Ask if they’re familiar with the mandatory consequences from both the court and the Bureau of Motor Vehicles. Ask if they’ve won any OUI trials recently.  Or if they’ve had any recent criminal trials, at all. These are very important questions!Screen Shot 2017-08-12 at 7.46.12 PM

The sooner you retain an attorney, the better chance you have at getting the results you desire. Attorney Eric Thistle regularly represents individuals that have been charged with Operating Under the Influence in York and Cumberland Counties.  Call today for a free consultation.

 

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Parental Rights In Maine

A separation from your partner or spouse is never easy.  One of the most common questions parents have when separating is, “what will happen with the children?”

In Maine, the courts use the “Best Interest of the Child” standard to determine the child’s residence, and parent-child contact.  The Best Interest standard does not favor either parent, and instead balances all the relevant factors to determine what is best for the child. In fact, the court favors continued parent-child contact with both parents, and encourages shared parental rights and responsibilities.

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Maine statute 19-A §1653(3) states, first and foremost, the court considers the safety and well-being of the child.  The court also considers the following factors:  (A) the age of the child; (B) the relationship of the child with the child’s parents and any other person who may significantly affect the child’s welfare; (C) the preference of the child (if old enough); (D) the duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity; (E) the stability of any proposed living arrangements for the child; (F) the motivation of the parties involved and their capacities to give the child love, affection and guidance; (G) the child’s adjustment to the child’s present home, school, and community; (H) the capacity of each parents to allow and encourage frequent continuing contact between the child and the other parent; (I) the capacity of each parent to cooperate in child care; (J) methods for assisting parental cooperation and resolving disputes and each parents willingness to use those methods; (K) the effect on the child if one parent has sole authority over the child’s upbringing; (L) the existence of domestic abuse between the parents; (M) the existence of any history of child abuse by a parent; (N) all other factors having a reasonable bearing on the physical and psychological well-being of the child; (O) A parent’s prior willful misuse of the protection from abuse process; whether the child is beast-fed; (P) the existence of a parent, or household members, conviction for a sex offense; (Q) and whether allocation of some or all of parental rights and responsibilities would best support the child’s safety and well-being.

As you can see, there are many factors that the court considers when determining what is in the best interest of the child. However, the court may not consider one parent over the other based on their gender or the gender of the child. 19-A §1653(4).  Fathers, don’t automatically assume the mother is going to get sole parental rights and responsibilities.  And likewise, mothers, don’t assume you will automatically get everything you want without a fight.  This is where it helps to have an experienced family law attorney on your side to advocate for your interests.

It is also important to note that the court may not take into consideration the fact that one parent has left the family home, if the departing parent has been physically harmed or seriously threatened with physical harm by the other parent and that threat of harm was causally related to the departure; or when one parent left the family home by mutual agreement, or at the request or insistence of the other parent. 19-A §1653(5).

Separating from your partner or spouse with children involved is not easy.  Don’t just hope for the best.  Contact Attorney Eric Thistle today to schedule a free consultation.

 

Disclaimer: This article is intended to provide general information about Maine law. This article does not constitute an attorney-client relationship between the author and the reader.