Sunday, March 9, 2008

Why do I need an expert for my OUI?

Never plow your field with another man's mule.  If you can remember that phrase, it will serve you well in your criminal case.  The State has many resources at its disposal and favorable legal advantages that it can easily exploit.  One of those legal advantages is M.R.S.A. 29-A section 2431(2)(G) which states that "the results of a self-contained breath-alcohol testing apparatus test is prima facie evidence of blood-alcohol level."  What that means is that as long the machine carries the DHHS stamp of approval, the Intoxilyzer printout of your blood-alcohol level is presumptive evidence of your intoxication.  IE, if you are .08 or greater you are guilty of the crime of OUI.  

Now, the State does not need to subpoena the State's Chemist to testify as an expert witness about your blood alcohol.  All they have to do is lay a foundation that you were operating a motor vehicle... on a public roadway... and that your blood-alcohol content was .08% or greater.  As long as the machine was inspected and approved by DHHS during its semi-annual calibration check, the blood test is presumptive evidence of your guilt.  Of course that is rebuttable.  Defense attorneys can call the State's Chemist for the purpose of wringing concessions from him regarding accuracy of the machine, absorptive v. post-absorptive state, blood alcohol calculation differences between men and women and all other sorts of issues.  However, the State's Chemist has a party line to tow.  That doesn't mean he is dishonest, rather, it means he has a doctrine/philosophy/theory that he believes is true and therefore, is deeply entrenched in that doctrine/philosophy/theory and difficult if not impossible to move from that line of thinking.  

Therein lies the problem of trying to get your defense out through the State's expert witness.  He's the State's expert witness!!!!  Not yours!!!!  He's not there to help you.  In fact, he's more likely than not going to sink your ship.  While your attorney can make hay over the police officer's observations and subjective evaluation of your performance on SFSTs, juries are interested in one thing... the number.  Whether it is a .11% or a .32%, you need to make that number disappear through a pretrial motion OR get an expert to explain why the Intoxilyzer is fallible/unreliable and/or the number as it applies to you is flat out wrong.  

Now keep in mind, an expert is not there to lie for you.  In fact, no expert worth their weight in salt will lie for you.  An expert with a credibility problem is an expert that is subject to devastating cross examination by the prosecutor and someone who will soon be without a job.  The expert is there to explain your breath test to the jury and explain the other side of the scientific research out there that the State's expert may not recognize... not want to recognize... or is simply unaware of.  You need that expert to help explain away the test result so the jury feels justified in returning a not guilty verdict. 

Remember that old saying "better save for a rainy day"?  Well, if you come to my Office with an OUI... it's safe to say it's raining out.  With so much at stake... your driving privileges... your reputation in the community... your job... a criminal record... public embarrassment... damage to your credit... rapidly escalating insurance premiums... just to name a few; shouldn't you put everything you've got into defending your case?  Look at it this way.  Without an expert, I'm just a soldier fighting a battle against a better funded and bigger army.  I'm armed with a sidearm, a rifle and a few hand grenades.  Sure, I can win.  But without the resources of an expert at my disposal, I can all too easily lose.  An expert is also a great bell-weather to check your expectations with reality.  If you have a bad case, the expert will tell me and you can bet I'm going to tell you.  You need to know all of the information, both good and bad, to make a proper decision to take your case to trial.  

I hope everyone reading this post reads it a few times so that it sinks in.  Experts are very important in OUI cases and can make all the difference between a verdict of not guilty and the other one that we as lawyers are constantly striving to shield you from.  At the end of the day it is your decision.  If you aren't financially constrained from retaining one at my recommendation do it.  If you have to swallow your pride and ask family members for help, do it.  If you have to max out your credit cards and take out a loan to get the expert... do it.  When the rubber hits the road, you need to pull out all the stops to win.

William T. Bly, Esq.
Maine OUI Lawyer