You Aren’t Required To Submit To A Breathalyzer, But You Might Want To

Typically, when a motorist is pulled over on suspicion of Operating Under the Influence (OUI), a law enforcement officer will ask the driver to exit the vehicle and perform standardized field sobriety tests.  Based on observations by the officer, he or she may ask the driver to submit to a breath test (known as a Breathalyzer or Intoxilyzer).

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. See 29-A §2521. This reading of the statute may leave some feeling as though the breath test is mandatory at the request of a law enforcement officer.

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Innocent Until Proven Guilty?  Not at the Portsmouth Naval Shipyard

At the Portsmouth Naval Shipyard in Kittery, Maine, individuals looking to gain temporary access for work or other matters may be prohibited from entering based on pending criminal charges.  In fact, all misdemeanor and felony charges (except first-offense Operating Under the Influence) will prevent an individual from gaining access to the Shipyard until the case has been finally adjudicated.

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In addition to the ban for individuals with pending criminal matters, the Portsmouth Naval Shipyard also has significant bans for individuals with criminal convictions. For example, all misdemeanor convictions (excluding first-offense OUI) carry a five-year ban from the Portsmouth Naval Shipyard.  All felony convictions carry a ten-year ban. All convictions that require an individual to register on the sex offender registry will result in a lifetime ban from the Portsmouth Naval Shipyard.  All individuals with active warrants will be precluded from entering until the warrants have been recalled, or the case has been finally adjudicated.

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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.

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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.

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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.

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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.

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). Continue reading “Not Guilty Verdict – Gross Sexual Assault (Class B Felony)”

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.”

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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.

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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. Continue reading “What is “Marital Property” in Maine?”

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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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.