OUI Breath Test Refusal

How does an Intoxylizer work?

Falmouth, Maine


Blood / Alcohol Content (BAC):

Refusal

Defense:

Attorney Nichols is an expert on Intoxylizers/Breath Testing

Defense Attorney:

Matthew Nichols

Offense:

OUI – Refusal

Maximum Sentence:

364 days in jail (minimum mandatory four days in jail), $2,000 fine and 150 license suspension.

Synopsis:

Client was a medical doctor charged with OUI (refusal) from an incident occurring in Falmouth, Maine. He faced both the criminal charge and the real probability of severe sanctions from the medical board if convicted.

Client was stopped for speeding and erratic driving by a Falmouth police officer. He performed poorly, according to the arresting officer, on the field sobriety tests. Client was arrested and hauled in for a breath test on an Intoxylizer 5000EN. Although the arresting officer was a highly experienced and outstanding officer, well-versed in the administration of Intoxylizer tests, he opted to allow a young, inexperienced officer to administer the test in order for that young officer to gain experience.

Although an experienced officer, the arresting officer’s direct testimony regarding client’s driving and field sobriety tests was methodically broken down into component parts by Attorney Nichols on cross examination . The resulting testimony, in its totality, painted the picture of Client as a completely sober, unimpaired driver.

Maine Law requires a jury instruction, in refusal cases, that tells the fact-finders (the jurors) that they are free to find a defendant guilty of OUI based solely on his refusal to submit to a breath test. Thus, the defense had one more hurdle to overcome.

On direct examination, the young officer testified that Client “pretended” to provide a breath sample, but that he was simply “messing around”. Attorney Nichols took a shot at engaging the young officer in a discussion about Intoxylizer testing, although thinking that the officer would decline. However, the officer took the bait. The “discussion” ended up revealing that the young officer had, himself, been inadvertently “messing around” in his instructions to client about how to perform the test. Seems the young officer did not realize that Attorney Nichols had been certified and re-certified as an Intoxylizer operator since the young officer was in grade school, not to mention that Attorney Nichols had been teaching defense lawyers, prosecutors, judges, legislators and even police officers about OUIs and Intoxylizers for twenty years as well as testifying as an expert witness on Intoxylizers in Federal Court.

Although both client and his companion on the night of his arrest were prepared to testify, there was no such need following the cross examination of the young officer.

Verdict: Not Guilty

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