Attorney Bly's Blog

New book out...

2009-06-08T09:19:00.000-07:00

Well, it's official. I finally completed my eBook and it is now available for sale on my website. The book is titled The DUI Survival Guide. Demystifying the Process. My book gives the reader the "20,000 foot" overview of the process. This isn't a "how to defend yourself book". Rather, it is a tool to provide the reader with clear guidance on how to choose an appropriate lawyer through asking the right questions as well as a "map" of the court and OUI process. An informed and educated client should be the goal of every DUI attorney. I hope you enjoy the book.

All work and no play...

2009-05-28T19:51:00.000-07:00

This picture sums up the typical work vacation for me... As usual, I'm taking phone calls on my iPhone and typing information into my laptop. Two things I never leave home without are my iPhone and my laptop. Hey, if you're going to be on vacation, you might as well get some work done too!

The rest of the pictures are some pictures of the most beautiful state I have ever had the privilege to spend some time in... Oregon. There are pictures of us traveling through the mountains with snow, pictures of the Pacific coastline, pictures of deserts and mesas and pictures of the river we fished... all in the same trip. It was an awesome trip. The conference Chris and I attended was pretty awesome as well. We headed out to Portland Oregon on May 13th for a 3 day Federal Criminal Defense conference. It was amazing and we learned a tremendous amount. Hopefully we can put that knowledge to use soon on some of our cases.

After the conference in Portland, Chris flew back home and I flew down to San Diego for a forensic blood seminar for OUI defense. Again, this was a top notch seminar that focused strictly on the science behind blood test and urine test cases. We were able to view an operational state lab and received instruction from the best names in science, medicine, law and alcohol research. Sorry, no pictures. This one was literally all work and no play. Well, enjoy the pictures of Oregon. I hope it inspires you to travel out there one day.

Recent victory...

2009-05-03T19:30:00.000-07:00

I don't like to get on my blog to speak about specific cases. However, from time to time I find it instructive to talk about a recent victory to illustrate the point that you can only win if you choose to fight.

I had a 2nd offense OUI with a relatively high test. We prevailed at the BMV hearing because of a residual mouth alcohol issue and saved my client a 3 year suspension. Since he is a contractor, a suspension would have destroyed his business and in this economy, that is an exceptionally tough thing to swallow.

We went to court about a month ago for a motion to suppress the stop on the grounds that there was no Reasonable Articulable Suspicion to stop my client's truck. Well, I just received notice of the decision and we won. That effectively ends the case because anything that happened after the truck was stopped doesn't come in. That means no SFSTs, no statements, no observations and certainly no BAC test result.

So how did we get this result? We fought. Plain and simple. We didn't accept the possibility of defeat because that wasn't an option. My client told me flat out that if he were to lose his license, his business would crash. Since he owned a very profitable construction business, there would be a lot of collateral damage were he unable to drive. Employees would be out of work, he would be unable to finish jobs, customers would be unhappy, and most of all he would lose the ability to provide for his family.

The client made it very clear that he would risk jail time in order to have a shot at beating the case. We got an extremely reputable breath testing expert involved in the case very early. This in turn set the table for the BMV suspension hearing, where we prevailed. Normally, a BMV hearing is limited to 15 minutes. However, our hearing went on for over an hour. I prepared for this hearing for almost a full day as I didn't want to leave anything to chance. We pinned the officer down on his report, got him to contradict himself numerous times and ultimately inflicted so much damage to his credibility on memory issues that we were able to wield the transcript like a sword against him in court.

When you arrive in court and announce ready for hearing, chances are you might be the only one truly prepared to go. Many attorneys withdraw their motions on the day of the hearing and the DAs count on that. They can't prepare for every single hearing... there just isn't enough time. That means if your attorney is a fighter (me), he will be prepared for hearing and in a better position to beat the DA on the important issues.

Ultimately, we won the hearing. The case was effectively killed and will have to be dismissed as a result. Now keep in mind that more cases are lost than won at hearing. The reason is because the law is heavily slanted in the state's favor. However, that doesn't mean you don't keep fighting. In fact, you keep fighting harder because that is what gets you results. In this case, my client is an extremely happy individual. He was able to walk away from this case with absolutely no fines, no suspension time, no jail and no criminal record.

If you find yourself on the wrong end of the law, you need a good lawyer. Someone who is going to fight for you. Whether it is a drunk driving charge, aggravated assault, drug trafficking or any other criminal charge, the attorneys of NIELSEN & BLY, P.C. will fight for you every inch of the way. We are the preeminent law firm of southern Maine and we hope you choose us to represent you in the future.

Regards,

William T. Bly, Esq.

BIG US Supreme Court news!!!

2009-04-22T11:14:00.000-07:00

Arizona v. Gant, decided on April 21, 2009, will change the criminal legal landscape for the foreseeable future. The great significance of this case is that motor vehicle searches following the arrest of the occupants will no longer be upheld as legal searches where the occupants have been secured and no longer have access to the vehicle interior. In many cases, drugs and weapons are found following routine traffic stops and arrests for innocuous offenses such as bail violations or warrants for arrest.

The following is a synopsis of the decision... Argued October 7, 2008, Decided April 21, 2009... Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant's lawful arrest on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U. S. 752, requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant's arrest implicated neither of those interests, the State Supreme Court found the search unreasonable. Held: Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believethat the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

216 Ariz. 1, 162 P. 3d 640, affirmed.

STEVENS, J., delivered the opinion of the Court, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. SCALIA, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY, J., joined, and in which BREYER, J., joined except as to Part II

Why we fight...

2009-04-16T17:15:00.000-07:00

While I can't get into specifics about my cases for client confidentiality reasons, I can tell you with a certainty that in many jurisdictions you are so much better off fighting the case as opposed to negotiating the case. If you take your case to a suppression hearing or trial, you are more likely to get a better offer than if you merely try to negotiate a deal without putting the blood, sweat and tears into the case.

There is one jurisdiction where the best offer they will ever make is to plead guilty to the mandatory minimum penalties... regardless of the strengths or weaknesses of your case. If you have a triable case, why in the world would you plead guilty? If you have a legitimate issue to go to a suppression hearing on, why in the world would you plead guilty? I don't know but I see way too many lawyers withdrawing their motions and folding up the tent so to speak.

Test the State's theory of the case. Of course the DA is going to tell you you will lose the hearing. They're hoping you will fold. However, no one and I mean no one can predict with certainty the outcome of a suppression hearing or trial. Things go wrong. Witnesses forget. Witnesses contradict themselves. Witnesses lie. Video evidence doesn't support the police officer's testimony. Certain evidence is inadmissible that the State was counting on getting admitted. The list goes on and on. The only thing that is certain is that if you plead guilty, you will be saddled with a criminal record for the rest of your life. Think about that the next time you're in court with your lawyer.

Price Shopping for Attorneys

2009-04-14T05:49:00.001-07:00

There is an old time tested adage that is as true today as it was when it was first uttered years ago... you get what you pay for. The costs for legal services is a concern for most folks. The fact that it is the primary concern for many is disconcerting. Beware of the attorney that says he will take your case for $2,000.00. He either doesn't have the requisite experience to properly defend your OUI case or he will not be able to afford to spend the time necessary in defending you against the OUI charge. Attorneys that charge too little generally do very little. It is a simple cost-benefit analysis. If the attorney only charges enough to perform 10 hours of work, he will be loath to put additional time into the case or take it to trial when necessary. Why? Because that cuts into his bottom line and his hourly billing rate begins to go down.

The outcome of your case will affect the rest of your life. If you save a few hundred or a few thousand dollars but lose the case, did you really save anything? How much is a NOT GUILTY or dismissal of the charges worth to you? That's the question you need to answer for yourself. Another question you must answer is how will an OUI conviction affect the rest of your life? It may certainly affect your ability to maintain your current employment if you need to drive to work. It will cause your insurance rates to skyrocket. It will bar you from traveling to certain countries such as Canada for business or pleasure. It may even affect your ability to secure a promotion or new position in the future.

Shopping for an attorney is not like shopping for a new plasma TV or a new dishwasher. There is no warranty on the attorney. In most cases it may be too late to return the attorney once he starts the case; the damage may already be done. The most important consideration when shopping for an attorney is the quality of the legal services he or she will provide. Price should be the last piece of the puzzle you should be seeking a fit for when shopping for an attorney. The bottom line is you are paying for results and in order to get the best results in your case, you need to hire the best attorney.

Suppression hearings...what, where, when and why

2009-04-10T18:49:00.000-07:00

When you retain an attorney to fight for your rights, that attorney may or may not do a good job explaining the process from A to Z in a way that you understand and puts you at ease. Tonight, I want to take a few minutes explaining to you in plain language, the meaning and importance of a suppression hearing as it pertains to your criminal defense.

WHAT is a suppression hearing? A suppression hearing is an evidentiary hearing conducted in front of a presiding Judge or Justice in your criminal case. The hearing is nearly always testimonial in nature, ie, meaning one or more witnesses must testify and the witness is subject to cross-examination. The goal of a motion to suppress is to exclude evidence or statements illegally obtained and/or in violation of your state and federal constitutional rights. In order to exclude or "suppress" that evidence, a hearing must be held which will invariably impact the direction or defensibility of your case.

WHERE does a suppression hearing take place? It will always take place in the courthouse where your trial will be conducted but not always by the Judge or Justice assigned to preside over the trial.

WHEN does a suppression hearing take place? A motion to suppress normally must be filed within 21 days of your arraignment. However, the motion usually isn't heard until many months into the case. During this time, your lawyer should be constantly reevaluating your case and your motion to determine its viability and chance of success.

WHY should your attorney file a motion to suppress? Because if your attorney fails to file the motion within the 21 day time period and a month or two into the case determines that you have good grounds to file a motion, it is too late. It a heck of a lot easier to withdraw a motion to suppress than it is to request leave of court to file one after the deadline has passed. Another good reason to file a motion to suppress and conduct a hearing is because the State's case may fall apart through aggressive cross-examination. The truth is the State wants to believe their case is bullet proof... it is also true that in many instances, the State's case is anything but bullet proof.

Training updates

2009-03-31T15:59:00.000-07:00

I like to keep my readers posted on the training the members of my Law Firm are attending at any moment. Here is a break down of the national seminars scheduled we will be attending.

Attorney Nielsen is attending the NHTSA Student SFST course in Atlanta in mid-April. Attorney Nielsen will come away with the same skill set and knowledge that every police officer throughout the state of Maine receives while attending the Maine Criminal Justice Academy.

Towards the end of April, both Attorney Nielsen and Attorney Bly plan on attending a 1 day seminar for advanced OUI training.

From May 7th - 10th, both Attorney Nielsen and Attorney Bly will be attending a federal criminal seminar in Portland Oregon entitled "Winning Strategies Seminar" which is dedicated to the nuts and bolts of federal criminal practice. In addition to this national seminar, Attorney Nielsen regularly attends monthly workshops dealing with common federal issues that tend to crop up in most federal drug cases.

From May 13th - 18th, Attorney Bly will be attending a specialized blood alcohol seminar. The focus of this seminar is to deal strictly with the collection, analysis and problems associated with blood and urine testing in OUI cases. Attorney Bly has successfully defended numerous blood test cases throughout his career and this specialized training will prove to be a benefit to future clients charged with OUI where a blood sample was obtained.

In July, both Attorney Nielsen and Attorney Bly will be attending the annual National College of DUI Defense workshop at Harvard Law School in Boston, MA. This will likely be the final out of state seminar that either Attorney Nielsen or Attorney Bly will attend for 2009.

The value of a Law Firm dedicated to the defense of their clients through formal and self-education cannot be underestimated. If you are reading this post because you have been charged with a crime, take a look at our qualifications and dedication to our chosen field of criminal defense. Compare our qualifications with the next attorney you speak to about possible representation. Ask him or her what their qualifications are as well as their specialized education. I'm willing to bet that there is not a single attorney in Maine who undertakes the time and great expense of attending the nation's best educational seminars to give their client's an extra edge on their cases. Sometimes it's the little things that make all the difference.

How the right attorney can make a difference in your case...

2009-03-24T17:47:00.000-07:00

All of my clients want results. That's what I'm being paid for. Just as importantly, I'm being paid to advise my clients how to proceed in the case. Not everyone emerges from the OUI process unscathed. However, choosing the right attorney to represent you can make all the difference in to your case.

One of the first things you want to know about is your attorney's experience and educational background. Has he/she ever tried a DWI/OUI/DUI? What percentage of his practice is devoted to drunk driving defense? Has she written any books or articles? What CLE courses has she attended that focus on OUI work? Does he have access to a network of expert witnesses to assist in the defense of the case? These are important questions to ask and quite frankly, I rarely hear clients asking me or anyone else the tough questions.

The question everyone seems to be predominately preoccupied with is "how much is this going to cost?" That shouldn't be your primary concern, though cost does factor into the ultimate decision on who to hire. A better question is "how much is this going to cost me if I lose?" An OUI can exceed $15,000.00 in court costs, fines, insurance high risk pool costs, installation of IIDs (ignition interlock device) and other hidden costs that are completely unforeseeable. These costs are in addition to the costs of retaining an attorney to represent you.

If you balance the cost of hiring the right attorney to fight your case and win against hiring the cheapest available attorney, the choice is obvious. If all you do is save a $2,000.00 - $3,000.00 but in the end you lose... you pay much, much more and you've saved nothing and lost everything... including your job if you are a pilot or drive for a living. My father had a saying that took me a lot of years and tough life lessons to understand and become ingrained in me: "don't be penny wise and pound foolish". Retain the best. You deserve it and your future depends on it. Call the attorneys of NIELSEN & BLY now.

Refusing to submit to a test

2009-03-12T20:31:00.000-07:00

Every driver in the state of Maine is required to submit to a chemical test of the officer's choosing. If you refuse to submit to a test, the consequences are dire. Take for example a very "vanilla" 1st offense OUI. If the driver submits to a test and he fails, the worst administrative penalty he will face is a 90 day suspension of his driver's license for which he will be immediately eligible to apply for a work restricted license. Now take that same "vanilla" OUI and change the facts slightly. Instead of failing the test the driver refuses to submit to a test. Now that same driver faces a 275 day administrative suspension of his driver's license as well as an additional 90 day suspension if convicted of the OUI in criminal court... and he will not be eligible for a work restricted license. Big difference in potential penalties. Think twice before you say no to the officer if you are considering refusing a chemical test.

I'm writing a book...

2009-03-10T20:14:00.000-07:00

I'm in the process of writing a book that I will make available online to anyone who has questions or concerns about the OUI process. The title is The DUI Survival Guide: De-Mystifying the Process. I hope to have this book available online by the end of April. Stay tuned.

I have a high BAC. Why should I bother to hire an attorney?

2009-01-28T19:10:00.000-08:00

This is a rather common question. I get more than a few phone calls a week where the caller says he/she has a very high BAC (greater than .15%). Within a few minutes, the caller will always ask me why he/she should even bother to hire an attorney since it's obvious he/she is guilty. My response is "if you want to plead guilty, hang up the phone and save your money... you don't need me to do that."

In many cases, there is no way to know how strong or weak the evidence against you is until you are deep into the case and reviewing the evidence. Many times, cases can turn on a single piece of evidence alone. Sometimes, cases that appeared to be a lost cause early on turn into a solid winnable case based on some evidence obtained or suppressed in the case. You just never know.

People hire me to fight. When you have a case that appears hopeless, pick up the phone and call me. While I can't guarantee you that you'll "beat the rap", I can guarantee you that I will leave no stone unturned and I will press every legal advantage to your benefit. I guarantee that your case isn't nearly as hopeless as you think it is.

100% of the people who plead guilty are found guilty...

2009-01-22T11:05:00.000-08:00

The percentages are much better for those who push their cases to trial. The best offer you get might be the offer you get from the DA on the day your set to pick a jury for trial. You won't know if you don't push the envelope. People hire me because I fight. Period. They also hire me because I don't tell stories about sunshine and butterflies. I tell the truth. That's what you need to hear when you are contemplating taking a deal vs. going to trial. You need to be able to rely on my opinion regarding the strengths & weaknesses of your case so you can make an informed decision.

Not every case ends with smiles and joy. Sometimes juries return verdicts of guilty. It is the nature of this business that you will win some and you will lose some. The name of the game is risk assessment. IE, weighing the risk of turning away a deal or straight plea vs. trying the case. Many factors come into play in this assessment process... the problems with the case... the potential penalties imposed after trial vs. the known penalty for pleading guilty to the State's best offer... the cost of trial, including the retention of an expert witness... there are many things to consider. Before you make a decision about how to proceed, consider this truism... 100% of the people who plead guilty are found guilty.

I want the cheapest attorney and best representation

2009-01-16T12:19:00.000-08:00

Sorry. That statement is an oxymoron. The two cannot co-exist. If you are reading this post and "shopping around" for the cheapest attorney then stop reading... close out your browser... open the phone book... close your eyes... and randomly pick 3 attorneys to represent you on your OUI/DWI/DUI charge. I guarantee that one of them is a dump truck lawyer. What is a dump truck lawyer? A dump truck lawyer takes your case for a seemingly "reasonable fee"... maybe $2000 or less. They will tell you they know the prosecutor. They will tell you they know how to negotiate a good deal. They will tell you not to worry... and then they're going to do nothing with your case. If you're lucky, they might read the police report but don't count on it. Suddenly, docket call is tomorrow and you're set to meet with your Dump Truck Lawyer the next day. You see him at court and he tells you how bad your case is... "you have a .13% BAC... you look bad on SFSTs and the cop says he saw 6 clues on HGN... there's nothing wrong with the Intoxilyzer (he really doesn't know b/c he doesn't understand how it actually works and never bothered to undertake the time and expense to get certified on the machine)... you look bad on video" and so on and so forth. Then he tells you that he got you a NO JAIL OUI and how grateful you should be. Great. Thanks. A lot. He did about as good a job as you would have if you had just gone to your arraignment and pled yourself guilty.

I'm not a Dump Truck Lawyer. I try cases. I'm trying a .13% BAC in front of a jury next week. I also don't charge $2,000 for OUIs... no matter how simple you might think the case really is... because in reality, no OUI ever ends up being simple. If you want to know how much my fees are to handle an OUI then read this post real carefully... our fees at NIELSEN & BLY range from $3500 - $10,000 depending on the nature of the crime, number of charges, complexity of the case, novelty of the defense, likelihood of trial and finally, how much time I believe it will take to investigate, craft a defense and ultimately try the case.

If you're looking for a Dump Truck Lawyer, don't call me. I'm not interested in pleading you guilty at arraignment.

Professional education

2008-11-07T21:32:00.000-08:00

Continuing Legal Education (CLE) is a requirement imposed by the Maine Bar Association. The problem with CLEs is that most attorneys only do the bare minimum to satisfy the requirement. It is very rare these days for attorneys to do more than the 10 CLE credits per year. However, at NIELSEN & BLY, we believe professional education is an integral component of a criminal defense firm and is in harmony with our philosophy of providing the very best defense for all of our clients.

This year I have been to Maryland for an SFST student course. Dallas for a course on mastering scientific evidence in OUI cases. Harrisburg PA for an SFST instructor course. Boston for a 2 day nation DUI seminar and a local criminal defense seminar hosted by the Maine Association of Criminal Defense Lawyers. This year alone I have attended in excess of 100 hours of training focused on OUI defense.

However, the training doesn't stop with me. Attorney Nielsen has been busy as well. In October, Attorney Nielsen became one of the first attorneys in the country to attend a course devoted to understanding and dealing with Police Drug Recognition Evaluators (DRE). This was a 24 hour intensive course that will prove invaluable to Attorney Nielsen's clients who've been charged with Operating Under the Influence of Drugs.

In addition, Attorney Nielsen is flying out to Houston Texas next week to attend a national seminar hosted by the National Association of Criminal Defense Lawyers on defending drug cases. This course deals with all of the unique issues that arise in State and Federal drug cases such as wire tapping and surveillance methods, drug identification, confidential informants, criminal forfeiture issues, sentencing issues, money laundering, effective cross examination of the Government's expert witnesses and lab issues.

Both Attorney Bly and Attorney Nielsen have a full agenda planned for professional education in 2009. Attorney Bly will be attending a blood course in San Diego CA as well as the DRE course in PA. Attorney Nielsen will be attending a student SFST course as well as numerous federal drug education courses throughout the country.

Professional education doesn't end with a course work. Rather, professional education is an ongoing, life long process. A good attorney should continually read and educate himself about the law and science behind police work. CLEs shouldn't be looked at as a ticket to punch or a dreaded requirement that has to be fulfilled so that the lawyer can practice law. Rather, CLEs are just one part of the educational process that is ultimately utilized to the benefit of the client.

If you are in the process of trying to find an attorney to represent you in your criminal matter, interview that attorney and find out all you can about his/her qualifications. Ask the tough questions about experience... education... and dedication to the practice of law. You'll be surprised by some of the responses (or lack thereof) you receive.

How can an OUI affect me? I don't drive for a living.

2008-10-01T21:25:00.000-07:00

You'd be surprised to know that an OUI affects more than just your driving privileges. How about professional licenses? Thats right. If you're an attorney, an OUI conviction can present a real problem. How about a realtor? Yes. What about a doctor? Yup. What about an investment banker with a securities license? You betcha. You see, an OUI can affect your life above and beyond just your driving privileges.

If you have a private or commercial pilot's license, an OUI can result in a loss of flying privileges. What about a suspension but not a conviction? Do you have to report that? Yes. Even a suspension for an OUI that doesn't result in a conviction means that you must report that suspension according to Federal Aviation Regulations.

What if I work for the airlines but I don't fly? Is that a problem? Absolutely. If you nothing but handle baggage, your job could be in jeopardy. The FAA is a quagmire of potential legal land mines and if your attorney doesn't understand all of the different laws that could affect your livelihood, your livelihood could be in serious jeopardy.

The long and the short of it is that if you've been charged with an OUI, you can't take a single thing for granted. Even if the idea of a criminal conviction doesn't bother you, think it through and speak with me first. The worst mistake you could make is pleading guilty without understanding the ramifications of that plea.

I can't afford a lawyer...

2008-09-05T20:13:00.000-07:00

I once I had a client who told me that money buys justice. I don't know if I agree with that statement completely but there is a certain amount of truth to it that can't be denied. In Maine we are dealing with a court appointed system that is completely broken and will need a complete overhaul if we are to catch up to other states with respect to equal and quality representation.

Maine is flat broke. As a result, the professional services the courts are willing to pay for are extremely limited. When courts make judgment calls about whether or not a defendant is entitled to an expert witness in his case based solely on the financial state of affairs, something is fundamentally wrong with our system. Let me be the first to say I don't want to plow my field with the State's mule (ie, the State's expert chemist)! Why you ask? Because he's the State's expert... that's why. No matter how many judges will say "but Mr. Bly, he's testified for both the State and the defense", I can't believe he is completely impartial and unbiased.

The truth of the matter is this: if you can afford the best experts and the best lawyers, your chances of having a successful outcome in your case are greatly enhanced. Now understand, it's not a guarantee that you'll win. But it is a guarantee that your chances of winning are increased. Let's look at OJ Simpson for a minute. How much $$$ do you think he spent on that legal team? Not only did OJ throw a truckload of cash at his lawyers, but he got the best scientific experts involved for DNA analysis and blood spatter evidence (amongst many other issues). In addition, he had the resources to get a crack team of investigators to put a nail in Mark Furman's coffin and exposed his racist motivations to lie and manufacture evidence. In the end, the resources OJ was able to marshall made a big difference in his case... he was found not guilty. Could OJ have won with a public defender? Maybe... but definitely not without all of the other resources at his legal team's disposal.

While there are many, many top notch attorneys who work on a court appointed basis, their hands are tied when it comes to getting the best experts involved. That's because Maine's court appointed system is tied solely to money. While it is not fair (and many of us believe it may even be unconstitutional), it is the way it is here in Maine. So to the extent that money buys justice, I disagree. Instead, money buys a better defense because money buys resources. Plain and simple.

Now I know many people out there read this blog. I know many defense attorneys read it. Prosecutors read my blog. Even judges read this blog. Some of you may be offended by what I wrote. That's fine. You also know deep down inside that what I'm saying is true and that our system is in desperate need of a top to bottom overhaul. I honestly believe that this is one of the very few problems that you can actually throw money at and see an immediate improvement as a result.

William T. Bly, Esq.

Maine OUI Lawyer

Why didn't the police officer "Mirandize" me?

2008-08-06T20:08:00.000-07:00

Many people (even me once upon a time...) have the misconception that the police must read you your rights when they arrest you. That's not necessarily true. Many clients tell me when they first meet with me that "Officer so-and-so didn't read me my rights when he arrested me." My response to that person is "did he ask you any questions after arresting you?"

Miranda warnings... you know, the warnings they always give the "bad guy" at the end of one of those cop shows where they make the arrest? It goes something like this: "You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you. Do you understand these rights as I've given them to you?"

So, what is the purpose of Miranda and when does a police officer have to give me those warnings? Well, first you must be in custody. Custody is defined loosely as a situation where your freedom of movement is constrained but not to the degree of a formal arrest. Sounds like some lawyer double talk doesn't it? We all know what an arrest looks like. You're in cuffs in the back of a squad car being brought back to the PD for booking. However, do you know what a custodial situation looks like? Those are the tough calls and are open to dispute... usually in front of a judge where your attorney is trying to suppress evidence gained in violation of your constitutional rights.

Speaking of constitutional rights, that is what Miranda was meant to protect... your constitutional right to be free from an unlawful interrogation. In other words, if the police are going to question you about the circumstances for which you have either been arrested for or are currently under suspicion for and being questioned, they must warn you about your right to remain silent. Remember the phrase "you have the right to remain silent. Anything you say can and will be used against you." That means DO NOT SAY ANYTHING!!! Let me repeat that in case you missed it... DO NOT TALK TO THE POLICE!!!! PERIOD. If you have been arrested for a crime... are taking the roadside olympics during an OUI investigation or the police just want you to "shed some light on a situation so we can clear you of any suspicion", just remember these words... DO NOT SAY ANYTHING TO THE POLICE. They can and will use whatever you say against you later. Don't do the police officer's job for him. Let him make his case against you without your help.

William T. Bly, Esq.

Maine OUI Lawyer

I have an out of state license...

2008-07-17T19:43:00.000-07:00

...what is going to happen to me if the State of Maine suspends me? Well, that's a complex question. The answer is that "it depends." It depends on your home state's laws. You see, there is no equality of treatment from one state to another. Depending on what happens here in Maine, your home state penalty might be more lenient or it may be much worse. It just all depends on your particular state. Take NJ for example... if you lose your Maine case your insurance in NJ will increase by as much as quadruple over the course of the next 3 years. In addition, your DMV will assess extremely high fines as well as a lengthy driver suspension.

The best thing you can do is to fight your case. Fight the Maine BMV suspension... fight the criminal charges... just fight. There are no guarantees in life and I can't guarantee that if you fight these charges you will prevail. However, I can guarantee that if you plead guilty to an OUI, you're going to have a criminal record... and it is going to have some impact on your home state driver's license. That impact may be more severe than you imagine.

William T. Bly, Esq.

Maine OUI Lawyer

A Lawyer's Time and Advice is His Stock and Trade

2008-07-01T13:00:00.000-07:00

"A Lawyer's Time and Advice is His Stock and Trade." That quote was made famous by Abraham Lincoln. A good attorney can only be measured by his time and advice. As a professional group, we don't create great and memorable works of art. However, our time and advice have the power to change the world... and your life for the better.

So when you're faced with a decision on whether to hire an attorney for your case, consider the following quote from the Harvard Law Review written nearly 50 years ago by George D. Honrstein, titled Legal Therapeutics.

"One thousand plodding hours may be far less productive than one imaginative, brilliant hour. A surgeon who skillfully performs an appendectomy in seven minutes is entitled to no smaller fee than one who takes an hour; many a patient would think he is entitled to more. The dubious value of the time factor as a standard for legal services has been recognized. The value of a lawyer's services is not measured by time or labor merely. The practice of law is an art in which success depends as much as in any other art on the application of imagination - and sometimes inspiration - to the subject matter. Another fact to be borne in mind is that when hours become a criterion, economy of time may cease to be a virtue. Inexperience, inefficiency, even incompetence will be rewarded. Expeditious termination of litigation will be discouraged - to the great cost of all."

Ask yourself the following question: how much would you pay a doctor to cure you if you or a loved one had cancer? Is any price too high? Would you rather die of cancer or live a long, healthy and prosperous life or die of the cancer running its course through your body? The answer is simple. Cure me. However, when it comes to the law, people don't ask me to cure them; rather people ask me to fix what they did. That's what I do all day long. I'm trying to fix or undo what you did and my time and advice are my stock and trade.

William T. Bly, Esq.

Maine OUI Lawyer

Trial Preparation

2008-06-14T20:21:00.001-07:00

It is now 11:30pm on Saturday night and there is still a lot of work to be done on this case. I pick a jury in 9 days for a felony matter and the stakes couldn't be higher. My client faces up to five (5) years of prison if convicted and the likely scenario is 12 - 18 months plus probation depending on how the facts play out... if convicted.

My job is to make sure I provide my client the best defense to the best of my ability. At the end of the day, the only thing that matters is a two word verdict... NOT GUILTY. The only way you get that two word verdict is by putting the time in. That's why I'm here. You have to be more prepared than your opponent if you want to win.

In the field of criminal defense the one with the easy job is the prosecutor. Really, it's true. They have a huge group of people devoted to putting you behind bars. They've got a crack team of attorneys... dozens of trial assistants... numerous investigators... a huge budget... and of course they have the police. So what do you have? You've got one guy standing between you and the government. That's right. You've got me.

It may not seem like much, but when you have a person dedicated to defending you and willing to stand up and trade punches with the prosecutor, the cops and the judge; you've got a fighting chance. That's why I'm here so late on a Saturday night at the Office. I want to win. I believe my guy is innocent... and I'm going to fight.

William T. Bly, Esq.
Maine OUI Lawyer

Did you know...?

2008-06-01T12:27:00.000-07:00

Did you know that a prior suspension of your driver's license by the Maine Secretary of State for an OUI or OUI related offense counts as a prior conviction for sentencing purposes? No? Well, neither do most people.

If your license was suspended for a .08% BAC and you WON the criminal trial, you have a prior conviction for sentencing purposes... even though you beat the criminal charges!!! That means the next time you get charged with an OUI, the DA can use that against you, which places you in jeopardy of a mandatory 7 day jail sentence if you were to plead guilty on the new charge or lose the case following a trial.

I would encourage you to seek legal counsel if you've EVER been charged with an OUI in the past, even if you haven't been convicted. You should know where you stand and understand that your case may be charged as a 2nd offense. Don't take any chances with your future or your freedom.

William T. Bly, Esq.
Maine OUI Lawyer

Why should I contest my suspension?

2008-05-27T13:04:00.000-07:00

When you get arrested for an OUI, a couple of things will happen. First, the arresting officer will give you a Court date to appear for your arraignment. Second, the arresting officer will submit a statement of probable cause, along with a copy of your Intox results and police report to the Maine Secretary of State (SOS for short). The SOS will send you a letter in the mail, usually within 14 days of the arrest, indicating that your right to operate a motor vehicle has been suspended effective "XYZ date"... UNLESS you request a hearing in writing and within 10 days of the effective date of suspension.

Here's why it is so important to follow through and request a hearing. First, unless you like riding your bike to work (hey, these days it might be cheaper), you need to request that hearing... or your license goes under suspension automatically. Second, if you plan on contesting your criminal case (I guess that's why you're reading this blog right now) this is the best opportunity to cross the cop on his police report. You can also usually get a copy of the PD report directly from the BMV and in advance of your arraignment.

There are so many different facets to OUI defense that I can't put them all down in a blog. Suffice it say that this hearing may not only impact your right to drive via the SOS, but it could have a real impact on your criminal case. I would safely estimate that I have gleaned important information in no less than 90% of the Administrative Hearings where I've represented my clients. Don't miss the boat on this one.

William T. Bly, Esq.
Maine OUI Lawyer

I need a work restricted driver license

2008-05-03T17:12:00.000-07:00

What do I do? Well, you are only entitled to a work restricted license IF this is a first offense OUI. If you've been charged with an OUI refusal you can't get one. If you have a prior conviction or have been suspended for OUI within the past ten years, you are ineligible for the work restricted license.

If you want to apply for a work restricted license, your boss must sign off on the application. That means you need to tell your boss you were arrested for OUI. Hopefully you have a good relationship with your boss.

In addition, the permit is only good for ninety days. In order to get your driving privileges fully restored, you will need to successfully complete the DEEP (Driver Education and Evaluation Program), pay your reinstatement fees and deal with the criminal charge.

If you get a work restricted permit and later plead guilty to an OUI or are found guilty following a trial, you will still have to serve at least 2/3rds of a 90 day driver suspension imposed by the Court. Of course you will get credit for any time served on the suspension while waiting for approval on the work restricted permit.

What does all of this mean? It means you better hire an attorney that understands the law and the administrative minefield waiting to trip you up if you or your attorney aren't careful. While no attorney can (or ever should) guarantee he/she can make your OUI "disappear", a good attorney must know how to help you with the myriad of problems you will face concerning the suspension of your license. A good attorney not only knows the law but knows how to evaluate your case, advise you on how to proceed, make the proper motions and can help you navigate the administrative suspension minefield.

William T. Bly, Esq.

Maine OUI Lawyer

Drunk driving and the military

2008-04-27T07:35:00.001-07:00

The Brunswick Naval Air Station is not too far from where I practice so I've had occasion to deal with more than a few military personnel who've been charged with OUI. The tales they tell are not pretty. UCMJ action... reduction in rank... garnishment of wages... discharge from the service. These are just a few of the things you might expect if you serve in the armed forces and are charged with an OUI. Each branch of service is different and has varying policies concerning alcohol charges and the impact it could have on your career. Some service branches will discharge you for a conviction while others will take some form of UCMJ action and require that you undergo an alcohol evaluation and rehabilitation course.

While I do not practice before military tribunals nor can I speak to specifics concerning the Uniform Code of Military Justice, I can say that based on anecdotal evidence I have received from military personnel charged with OUI, the stakes are very high. If you are a member of the Army, Navy, Air Force or Marines and have been charged with an OUI, you must take this charge seriously. I guarantee that your commander will take it seriously and the consequences will be harsh. As a former member of the United States Army stationed CONUS and in Korea, I can tell you that I saw more than a few friends suffer the harsh reality of UCMJ action.

The best solution of all for military personnel is to not even place yourself in a position where you career might be compromised. Finally, If you are a military pilot and are charged with an OUI, the consequences are many times greater and can even prevent you from flying for the private airline industry in the future.

William T. Bly, Esq.

Maine OUI Lawyer

Don't plead guilty...

2008-04-08T19:31:00.000-07:00

Guilt is a funny thing, pleading guilty isn’t. At arraignment, defendants often decide that it is best to plead guilty and just take your medicine. People do this for many reasons, one of which may be for a guilty conscience, or because they want to put the case behind them and move on, or for even a sense of honor and doing the right thing or maybe even for their machismo. Whatever the reason, the decision to plead guilty at arraignment is a bad idea on many levels, none of which have anything to do for why you think it’s a good idea.

Like it or not, you’ve got a life. Pleading guilty has an adverse impact on your life and the amount of that impact is always a matter of degree. At the very least, an adverse impact of your guilty plea is it goes on your record, and it will stay there, forever, the metaphorical black mark. Even objectively, having something that is going to follow you around for ever just doesn’t sound good.

What else does that guilty plea do to you? Do you know? Is it going to have a consequence you haven’t thought of? It probably will. Besides the obvious fine or possible period of incarceration, a plea of guilty can result in not only a suspension of your drivers license in some cases, but it is could result in a suspension of your hunting or fishing license. A plea of guilty could prevent you from going to Canada or worse, send you back home if you are not a citizen. A guilty plea can disabuse you of your hunting rifles or even make you ineligible for a future job or for federal student loans. The point is there are countless collateral consequences that can result from a guilty plea and it’s a sure bet you do not know what they are, and its even a safer bet that it will have an unwelcome, unplanned and adverse effect on your life. Think about it… these consequences are not worth the time you save by pleading guilty, and the adverse impact is often much more draconian than the sentences authorized by statute. You paid your fine, you did your time, that should be it right? Not always.

Basically, a guilty plea is game over. In order to take it, the Judge must assure that you are making it knowingly and voluntarily and that you have been informed of your rights. These are pie crust protections. You are assumed to be informed of your rights because you were so lucky to have seen the arraignment video before arraignment. You are presumed to have made your guilty plea knowingly and voluntarily because the Judge asked you if you are making your plea knowingly and voluntarily after being apprised of your rights. Moreover, this pleasant conversation with the Judge becomes part of the record. Now why is that?

That is because if in a month down the road from pleading guilty you learn that you are ineligible for one thing or another as a result of your guilty plea, you can’t come back to Court to withdraw your plea because you didn’t realize your newfound ineligibility. You’re on the record telling the Judge that you pled guilty knowingly and voluntarily. You can submit a motion to withdraw your plea, but it is a real long shot that it will be granted.

What is the safe and smart move? Preserve your rights at arraignment and plead NOT GUILTY no matter how you feel about it. Go and talk to somebody about what is going to happen as a result of pleading guilty. That somebody should be an experienced attorney. An attorney should be able to tell you what the possible collateral consequences of a guilty plea would be. An experienced attorney can discuss the possible collateral consequences of a guilty plea that extend beyond the boarders of your state, or that have an effect on the licenses you hold, fishing or otherwise. No matter what the charge, you should be fully apprised of the ramifications of a guilty plea before you make it and unless you discussed it with an attorney beforehand, you don’t have all the facts. Protect yourself by seeking out the advice of counsel before you plead guilty at any stage of your case.

William T. Bly, Esq.

Maine OUI Lawyer

I blew a .17%... what do I do?

2008-03-30T13:50:00.001-07:00

Well, first thing is you hire a lawyer that knows what the heck they're doing. There are many, many factors that go into breath alcohol analysis. I'm just going to scratch the surface by touching on a few.

BrAC --> BAC. OK, what does this mean you ask? This is just a simple symbol for the breath alcohol to blood alcohol conversion that the State's breath testing equipment must perform. Maine uses an Intoxilyzer 5000EN to analyze your breath sample. However, obtaining a breath alcohol concentration is not enough because Maine law calls for a blood alcohol concentration. Therefore, the Intoxilyzer must convert your numeric breath alcohol concentration into a blood alcohol concentration.

Partition Ratio & Henry's Law. What the heck are you talking about now? Henry's Law in its most simplified format says that when you heat a solution w/alcohol to a specific temperature (in a jar), that alcohol in the solution will be found in a gaseous state above the solution at a fixed partition ratio of 2100:1. That means that the alcohol found in the solution is 2100 times more concentrated than the alcohol above the solution. Needless to say, the people who created the Intoxilzyer 5000EN want everyone to believe that you and I are just like glass jars... 'nuff said.

Retrograde Extrapolation. Am I losing you? Retrograde extrapolation is the junk science (well, in all fairness, it is a legitimate scientific exercise that can determine your BAC at a certain place in time but only when issues such as weight, type of alcohol consumed, number of drinks, time started, time finished, and many other factors are known to a certainty by the State) employed by the prosecutor and his/her expert witness to go back in time to determine your blood alcohol content at the time of driving.

It's the State's burden to prove beyond any reasonable doubt that at the time you were driving, you were either impaired to the slightest degree by alcohol or that your blood alcohol content was .08% or greater. They attempt to achieve this by employing a complicated equation commonly referred to as the Widmark Formula. Of course they must assume for purposes of scientific validity that you were in the elimination phase rather than the absorptive phase (ie, you had already completely absorbed the alcohol into your blood stream and the body is now working to eliminate the alcohol). Now do you understand why they ask you all those crazy questions about how much you had to drink, when you ate, what you ate, where you ate, etc.? Because they're going to use that information against you later to establish a timeline so that the State's expert can reliably perform a retrograde extrapolation.

These are just three of many issues involved in OUI cases and merely serve as an example of the complex science involved in the prosecution and defense of these cases. I barely even scratched the surface here but I think you get the idea. When it's time to retain an attorney to defend your OUI case, make sure he or she has at the very least, a basic understanding of the science involved in these cases. It's just not enough to know the law.

William T. Bly, Esq.

Maine OUI Lawyer

I just got arrested for OUI, what happens next?

2008-03-22T17:41:00.000-07:00

If you're reading this blog, you must have made bail. What you do next can have a huge impact on your future. First, the police officer will write a report. He will include a copy of that report as the basis for probable cause to believe you were operating under the influence of alcohol. The officer will mail the Maine Secretary of State a copy of his statement for probable cause, a copy of the Intoxilyzer results and a copy of his police report. The Secretary of State will move to suspend your driver's license.

While this is happening, the arresting officer will send a copy of the summons and police report to the District Attorney. The District Attorney will review the report to ensure probable cause for arrest exists. If probable cause for arrest exists and the DA thinks it's a decent case, they will generate a charging instrument (the complaint) and file it with the District Court. The District Court will generate a docket number and assign that number to your case. The Court Clerk will schedule your case for arraignment based on the date assigned by the arresting police department.

In all likelihood and in advance of your arraignment, the Secretary of State will suspend your right to drive in the State of Maine... unless you request a hearing in writing and within ten (10) days of the date set for suspension. If you requested a hearing within writing, a hearing must be held and a decision rendered within 3o days. If you lose the hearing, your license is suspended for 90 days on a first offense OUI. If you win, the suspension is rescinded. Whatever the outcome, it is always a good idea to attend the hearing. Many things can shake out in your favor. The police officer could "no show"... The hearing's officer could agree with your argument regarding lack of probable cause or invalid breath sample... You could uncover a treasure trove of exculpatory evidence that wasn't readily apparent in your initial review of the police report... Anything can happen! That's why you do these hearings... and that's why you hire an attorney. The right attorney can make all the difference in the world.

So what happens next? You have an arraignment where you have an opportunity to plead guilty, not guilty or no contest. Obviously, if you plead guilty that's the end of the line. You don't need an attorney to plead guilty. You can do it a lot cheaper by doing it yourself. If you plead not guilty, you will have a 21 day deadline to file a jury trial request and any other pre-trial motions such as a motion to suppress. How those decisions are shaped are driven in large part by your attorney. This is just the start of the process. Where and how your case ends up will be in large part determined by the facts, strengths and weaknesses of your case and the skill of your attorney.

William T. Bly, Esq.

Maine OUI Lawyer

I've been charged with Domestic Violence Assault...

2008-03-16T10:10:00.000-07:00

What do I do? Do I need a lawyer? Should I plead guilty? What are the possible ramifications of a conviction? These and many more questions can be answered by any competent defense attorney. I will try and answer some of those questions for you on this blog.

Do I need an attorney? Yes. I know, I know... you knew I would say that. Well, it's the truth. A good attorney should know the prosecutor(s) handling the case, the disposition of the judge regarding harshness or leniency of sentencing, available defenses and weaknesses of the State's case. A good defense attorney should have a dedicated private investigator, experienced in interviewing hostile witnesses and victims, to assist building a defense for you. As a defendant, you probably have bail conditions that prevent you from contacting the victim. Your attorney can speak with the victim... see how he/she feels about a conviction... see if he/she is amendable to having your bail conditions amended... find out if the statement he/she gave the police was coerced or accurate and whether or not his/her story has changed. These are just a few reasons for why you need an attorney.

Should I plead guilty? Let me answer that question with one of my own... do you care about having a criminal conviction on your record? Do you like probation? Do you want to go to jail? If none of these questions bother you and you don't care, you should still speak with an attorney about your case. You stand to gain nothing and possibly lose everything by pleading guilty at your arraignment. Take some time to speak with an attorney and consider all of your options before rushing to what could be a very bad decision. At the end of the day, you can still change your plea to guilty if that's what you really want to do. If you plead guilty and have a change of heart a few weeks later, it's too late.

What are the possible ramifications of a conviction? If you were to plead guilty to the crime of Domestic Violence Assault, you could be sentenced up to 364 days in jail, a criminal conviction that will follow you forever and a lifetime ban from owning firearms. For many Mainers, that means you will never hunt again if convicted of a crime of Domestic Violence. In addition, if you were to be found in possession of a firearm years later, you could and would be charged with a federal crime and be facing stiff federal jail time that could amount to five (5) years or more in a federal prison.

The likely penalty for a conviction for Domestic Violence Assault would be a partially or fully suspended jail sentence of 364 days and two years of probation. Does that sound bad? It should because in my experience as a defense attorney, most people on probation make mistakes and have their probation revoked for infractions as minor as consuming a 1/2 can of beer or forgetting to report to their probation officer a single time. Probationers have very limited rights and are subject to random searches of their homes, cars and person at any time with no reasonable articulable suspicion. Furthermore, if you end up on probation and the State seeks to revoke your probation and send you off to jail for the remainder of your sentence, they need only prove that you committed an offense by a preponderance of evidence. Furthermore, the rules of evidence do not apply. It is all too easy to be cruising along on probation and suddenly someone is yanking the carpet out from under your feet. Take some friendly advice, call an attorney if you've been charged with a crime. I promise you'll thank me later.

William T. Bly, Esq.

Maine OUI Lawyer

Administrative Suspension Hearings

2008-03-12T09:59:00.000-07:00

When you're first charged with an OUI, a lot of questions will be running through your mind? What will I tell my family? Am I going to lose my job? Will the State take my license? Am I going to jail? Should I hire a lawyer? These questions and many more can be answered with a phone call to our Office.

The biggest question for most of my clients is: "am I going to lose my license?" Well, that depends on a lot of different factors. First of all, your license will be suspended administratively by the Secretary of State. You have a right to a hearing only if you request it within ten (10) days of the date of suspension. If you make a timely request and it is a first offense OUI w/a breath test, your suspension will be stayed until a hearings officer makes a determination following a full and fair hearing on the following issues:

1. Whether or not there was probable cause to believe that you were operating a motor vehicle with an excessive blood-alcohol level;

2. You in fact operated a motor vehicle with an excessive blood-alcohol level.

If this is a case of a suspension for failing to submit to a chemical test, your license will be suspended immediately, irregardless of whether or not you request a hearing. The suspension will only be lifted in the event that your attorney prevails on one of the following issues at hearing:

1. There was probable cause to believe that you were operating a motor vehicle while under the influence of intoxicants;

2. You were informed of the consequences of failing to submit to a test;

3. You failed to submit to a test.

Unfortunately, on most cases your license will be suspended. The evidentiary standard is so low (proof by a preponderance of the evidence) that the Administrative Hearings Officer will invariably suspend the license if the Officer can competently and credibly make the faintest of showing of compliance on the aforementioned issues.

So why you ask, should you hire an attorney if the suspension is a forgone conclusion? Because while the deck is stacked against you, a skilled and knowledgeable OUI defense attorney can tip the evidence in your favor. Furthermore, even if your license is suspended (and in many cases you can obtain a work or school restricted permit within a few days after the suspension), your attorney can glean valuable information about your case that isn't contained within the police report. IE, all of the exculpatory information that's missing. Since the officer is testifying under oath, you can obtain a recording of the hearing, have it transcribed and use it to cross-examine the police officer with at a later criminal proceeding.

Recently, I had a hearing on an administrative suspension for an OUI Refusal. I successfully argued to the hearings examiner that there was no probable cause to believe my client was operating a motor vehicle under the influence. The hearings officer informed me that statistically speaking, only about 1 in 500 OUI Refusal Administrative hearings are actually won on the merits. This ended up being one of those highly unusual circumstances where the facts of the case were favorable. Of course it helps that I'm knowledgeable about the relevant and controlling case law on that issue and was able to distinguish those facts from the ones in my client's case.

If you're still wondering why you should hire an attorney, re-read this post. While I can't guarantee that I will prevail during an administrative hearing, I will guarantee that I will show up prepared to cross-examine the police officer, argue the relevant case law and if nothing else, walk away from that hearing with a lot of new and helpful information that you were unaware of before hiring me. If you or a loved one has been accused of OUI in the State of Maine, please call our Office and ask to speak with me about your case.

William T. Bly, Esq.

Maine OUI Lawyer

State of the Union pt. 5

2008-03-10T08:43:00.000-07:00

More news from the Legislature. It seems that the concept of cutting the budget has caught our lawmakers by surprise. Chief Justice Saufley brought the budgetary concerns to the folks on the appropriations committee over two weeks ago. Now they're claiming that the recommendation to close the building is unconstitutional. Well... they're right! Due process applies to all Mainers, not just the lucky few whose arraignments aren't scheduled until June or later. The point is that our oh so wise members of the appropriations committee are scrambling to C.Y.A. themselves (former and current members of the military should recognize that acronym). They don't want the blame for shutting down the Courts to fall on their shoulders. If these folks don't like the budgetary cuts and other hard decisions being made in light of the budget crisis, tap into the rainy day fund. After all, does the state of Maine have to be swallowed whole by a flood for this Government to wake up and realize it's been raining for a long time and isn't going to stop anytime soon? If you're disturbed with how our government has been handling financial affairs in this state, pick up the phone or write a letter to your local representative and demand that they take responsible action... and more importantly, work on curing the financial malaise in this state and not just the symptoms.

Lawmakers' reaction cool to courts' budget options

By Mal Leary, Capitol News Service
Monday, March 10, 2008 - Bangor Daily News

AUGUSTA, Maine — Options outlined by court officials as solutions to the state’s budget shortfall, including suspending criminal trials for six weeks, received a chilly response from members of the Legislature’s Appropriations Committee.

"We are insisting they come back with proposals that do not infringe on the constitutional rights of citizens," said Rep. Janet Mills, D-Farmington, who serves on both the Appropriations Committee and the Judiciary Committee. "These proposals to suspend are the court’s proposals, not the proposal of the Appropriations Committee or the Judiciary Committee."

The possible suspension of criminal trials for six weeks has upset defense lawyers, the Maine Civil Liberties Union and county officials. Counties would end up paying to house inmates awaiting trial.

"This is very troubling that the judicial branch would even be considering not doing criminal trials when there is a constitutional right," said Rep. Jeremy Fischer, D-Presque Isle, co-chairman of the Appropriations Committee.

State Court Administrator Ted Glessner took the brunt of the often pointed criticism from lawmakers at an evening meeting of the Appropriations Committee last week. He defended the consideration of "all possibilities" because the judiciary needs to find $2.7 million within its budget to pay for constitutionally mandated indigent defense that is running higher than projected.

In addition, he said, the courts have been asked to find $2.1 million in cuts as their share of filling the more than $200 million state budget gap.

"If we did not process criminal cases for a period of six weeks, that would actually save $500,000," he said. "Another step could be to not hold civil jury trials for that period."

Committee members were not buying his argument. They pointed out that counties would be paying to house inmates awaiting trials for a longer period of time, and even though cases were not being processed, court staff would still be working.

"That’s not going to help anything," said Rep. Linda Valentino, D-Saco, "because all it is going to do is to dam up the cases and then you are going to have a floodgate effect when you do open the doors."

She made it clear that delaying trials of any type was unacceptable to her and that the courts need to find other savings within their budget to meet needs.

The courts receive about $58 million from the state’s General Fund to operate the judicial system; they also get funds from other sources including federal grants. The judicial branch has received funding increases for the last three budget years greater than the average increase for the rest of state government.

"It seems to me that there should be money that can be found in your other accounts to make sure the indigent defense is paid for," Fischer said.

Sen. Karl Turner, R-Cumberland, told Glessner that options that delayed justice were not acceptable and one-time fixes won’t work.

"As we look out to [fiscal year] ’09, I don’t see things getting any better," he said. "We need structural changes that will provide ongoing savings."

Turner said there are new positions in the budget that have not been filled, and the courts should consider not filling them at all. He said the courts also should consider what other agencies of state government are doing to streamline administrative services and see what can be adapted.

In fact, during a work session on the judicial branch budget last month, that committee discussed a wide range of possibilities, from surcharges on fines imposed by judges to closing courthouses.

"If we close rural courthouses, we will have two systems of justice, one for the rural areas of the state and one for the cities," said Sen. David Hastings, R-Fryeburg, a member of the Judiciary Committee. "I don’t want to see that."

Chief Justice Leigh Saufley, in a meeting with the Judiciary Committee last month, said she does not want to recommend court closings, but said it may be necessary. She said courts with the lowest volume of cases that now have judges available a day or two a week would be targets.

Among the courthouses that fit that criteria are Madawaska, Lincoln, Bridgton, Rumford and Dover-Foxcroft.

Mills said that while lawmakers do not want to "micromanage" the court budget, there are a lot of expenditures that should be considered, from the planned increase in court security screeners to mileage expenses. Judges get paid mileage from their home to the courthouse where they are sitting, not just from where they are usually assigned.

Glessner said a lot of the ideas are under consideration for the second year of the budget year, but the immediate problem is the $700,000 that must be saved by June 30.

"That’s why we are looking at options like not processing cases," he said. "We are running out of time."

He told lawmakers that Saufley will be making some decisions "in a matter of days" on what the courts will do to meet the budget reduction and will meet with both committees to discuss the options.

William T. Bly, Esq.

Maine OUI Lawyer

Why do I need an expert for my OUI?

2008-03-09T09:20:00.000-07:00

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

Letter of thanks...

2008-03-06T17:42:00.000-08:00

Attorney Nielsen and I have helped quite a few clients over the past few years with some rather serious charges ranging from OUI to Aggravated Drug Trafficking. While all of our clients have expressed appreciation for the work we've done and the battles we've fought for them, rare is the client who memorializes their appreciation in a letter. A few weeks ago, Attorney Nielsen received a letter from a client thanking him for the hard work he did on his case.

Just wanted to write you and thank you formally for everything you did involving my case. I also appreciate how quickly you sent that check out to me. I was very pleased with your representation of me and how professional and courteous you were in all aspects of the case. Again thanks for everything and keep up the good work.

Sincerely,

When this client first came to our Office, he was facing some serious charges. He'd been charged with aggravated assault and reckless conduct in a case that carried quite a bit of media coverage. Another young man had been injured and our client was accused of causing the injury. He spoke with a few different attorneys about his case and ultimately retained our Firm. Attorney Nielsen brought in outside professional services in the form of a private investigator. The PI tracked down all of the witnesses, spoke with the investigating officers and uncovered additional witnesses that weren't disclosed by or known to the State. As a result of Attorney Nielsen's efforts and the information gleaned by the PI, Attorney Nielsen convinced the District Attorney to dismiss the case. As a result, the State never pursued indictment. This type of case is an excellent example of why you should get an attorney involved in your case immediately after arrest. A good attorney should have the staff and investigative resources available to track down witnesses and exculpatory evidence that may not be available or has faded from memory if too much time passes. A good attorney may be able to mitigate charges, negotiate favorable plea agreements or begin building a solid defense if he's able to bring all of his legal resources to bear early on in your case. If you've been charged with a crime, call the attorneys of NIELSEN & BLY now.

William T. Bly, Esq.

Maine OUI Lawyer

State of Union pt. 4

2008-03-06T07:32:00.000-08:00

Does this make any sense at all? Take a good look at what the Governor proposed yesterday to the Appropriations committee. Ask yourself this... how hard does it have to rain to tap into the $150 million Rainy Day Fund? Because from where I'm standing, it looks like a tropical storm out there. Good job Governor. Too bad (sarcasm) term limits prevent us from bringing you back for another 4 years.

Round 2 of spending cuts proposed

The governor sticks to his stance of no tax increases, but some fees would go up to help the state.

By PAUL CARRIER Staff Writer March 6, 2008

SOME BELT-TIGHTENING IN GOV. JOHN BALDACCI'S PLAN

• Cut school spending by $34.1 million.

• Cut $500,000 from the Gov. Baxter School for the Deaf.

• Cut $7 million from UMaine system, about $2 million from the Maine community colleges and about $300,000 from Maine Maritime Academy.

• A net loss of 71 state jobs.

• Close six Deptartment of Health and Human Services offices.

AUGUSTA — Gov. John Baldacci has responded to a worsening budget shortfall by proposing a new round of spending cuts that would trim education funding, restrict Medicaid services and eliminate 71 state jobs, all to keep the state in the black through June 30, 2009.

The plan, which now goes to the Legislature's Appropriations Committee, retains Baldacci's earlier opposition to raising taxes as a budget-balancing tool.

The package would not dip into the state's savings accounts to balance the books, relying instead on reduced spending, fee increases and account transfers to eliminate half of the projected $190 million shortfall. A round of cuts proposed by Baldacci in January would fill the rest of the hole, also without increasing taxes.

The plan would increase the fee for state-run background checks, from $25 to $31, and raise the cost of the license that out-of-state malt liquor and wine makers pay to sell in Maine, from $600 to $1,000.

Some lawmakers reserved judgment on the proposal until they study it more closely; others alternately praised or criticized Baldacci's opposition to tax increases.

HOLDING FIRM ON TAXES

The state teachers union and an advocate for the poor decried the plan's impact on local schools and welfare recipients and suggested that higher taxes should be part of the mix to blunt the need for program cuts.

Still, some lawmakers and advocates conceded that the cuts, as a whole, are not as severe as they had feared.

The two budget revisions combined would trim general-fund spending from $3.1 billion this fiscal year to $3 billion next year, marking only the fourth time in 35 years that state spending has been reduced from one year to the next, according to documents released by the administration.

Baldacci, who presented his latest proposal Wednesday, said at a State House news conference that it was "a very difficult day for all of us" because of the impact the cuts would have. He said the state cannot turn to tax increases to address the problem because inflation, as well as escalating fuel and energy prices, make it impractical to expect Mainers to pay more than they do now.

"We must rebalance government without adding to the burdens Mainers are already struggling to overcome," even though the proposed cuts are painful, Baldacci said.

If the economy continues to deteriorate, he said, this second round of cuts in the $6.3 billion two-year budget "may not be the last one."

If the Legislature passes a budget that raises taxes, "I won't sign it. It won't become law," the governor said.

TOUGH DAY FOR EDUCATION

The departments of Education and Health and Human Services would bear the brunt of the latest budget revision, which would trim spending at those agencies by a combined $61.6 million.

The Department of Education faces a $34.1 million cut in funding for education next year, including a $23.1 million reduction in direct state payments to schools, which were scheduled to get about $1 billion from the state next year.

That would slow completion of the state's move toward a requirement that it pay 55 percent of funding for local schools.

The University of Maine System, Maine Community College System and Maine Maritime Academy, which escaped unscathed in the first round of cuts, were not so lucky this time. Baldacci wants the Legislature to trim $7 million from the UMaine System, close to $2 million from the community colleges and more than $300,000 from Maine Maritime Academy.

"Everything should be on the table" as the state tries to balance the budget, including spending cuts, savings withdrawals and tax increases, said Chris Galgay, president of the Maine Education Association, which represents teachers and other educators.

He said the governor's plan would have a "devastating" effect on schools and could trigger increases in local property taxes.

The university-system cuts are "extremely troubling," said Chancellor Richard Pattenaude, because they could force state universities to raise tuition by up to 14 percent and eliminate hundreds of classes, which would "make it harder for students to complete their degrees."

The plan would force about 5,600 of the state's 267,000 Medicaid recipients to pay a $25 annual enrollment fee to be insured by that program. The affected adults have incomes between 150 percent and 200 percent of the federal poverty level.

LOSING A 'SAFETY NET'

The governor's latest package would provide $8.4 million to compensate for lost federal Medicaid funds that are used to help disabled people identify and access the services they need. But the plan also would eliminate prescription-drug coverage for thousands of childless adults enrolled in the program.

"We're very concerned that the cuts really do eradicate the safety net" for the state's most vulnerable people, said Sara Gagn Holmes of Maine Equal Justice Partners, which advocates for the poor.

Many childless adults on Medicaid suffer from chronic illnesses, she said, so denying prescription coverage to "the poorest of the poor," with incomes of less than 100 percent of the poverty level, will compromise their health and undermine their ability to function as productive members of society.

She said the $25 Medicaid enrollment fee for some adults represents an expense for people who can ill afford any additional costs.

The latest proposals "aren't as horrible" as lawmakers had feared, but they are onerous when combined with the earlier reductions, said Senate President Beth Edmonds, D-Freeport.

That first round included more than $60 million in social-service cuts affecting the poor, the mentally ill, foster parents and other Mainers.

Edmonds said she's "very disappointed" that Baldacci has vowed to reject a budget that raises taxes.

Assistant House Minority Leader Robert Crosthwaite, R-Ellsworth, took the opposite view. Crosthwaite said it's commendable that the governor's plan raises no taxes, but unfortunate that it increases fees.

The Appropriations Committee will hold public hearings on the plan Tuesday and Wednesday.

Staff Writer Paul Carrier can be contacted at 622-7511 or at:

pcarrier@pressherald.com

William T. Bly, Esq.

Maine OUI Lawyer

Something else to think about...

2008-03-04T09:12:00.000-08:00

Maine gets low score for government

Its agencies are not held accountable in making their budget requests, the Pew Center says.

By BEN EVANS The Associated Press March 4, 2008

WASHINGTON — Utah, Virginia and Washington state have the most effective state governments in the country, according to a scorecard released Monday by The Pew Center on the States.

The center ranked the states based on how well they manage their budgets, staffs, infrastructure and information.

Maine received one of the lowest grades, a C.

New Hampshire got a D+, the lowest score. The state is not closely monitoring its costs and performance, Pew said in a press release.

The states with the highest scores have made accountability and innovation a priority, the report said.

Washington, for example, holds public meetings led by the governor to monitor how its programs are working, while Utah has a sophisticated financial tracking system that provides up-to-the-minute data.

Virginia offers its employees incentives for meeting goals and improving service.

"Effective state government really matters," said Neal Johnson, director of Pew's Government Performance Project, citing infrastructure as evidence. "The Minnesota bridge collapse and the failure of the levees in New Orleans prove that few functions of state government have more direct impact on the daily lives of Americans."

The "Grading the States" report card was the fourth in a series of assessments issued by Pew's Government Performance Project and Governing Magazine. The last was released in 2005. The rankings are based on reviews by a panel of state government experts.

States were graded on recruitment and retention of qualified employees, their use of information and technology, management of budgets and purchasing systems, and planning for improvements to roads, bridges and other core infrastructure.

The report on Maine said:

"Maine has an on-again, off-again relationship with performance measurement that dates back to the early 1990s. Right now, agencies are not required to include performance data with their budget requests -- although many continue to use the information internally to make decisions.

"The Legislature, which fell in love with performance measurement back in 2001, lost interest when its supporters were term-limited out of office. 'You had a group that's very committed to performance budgeting and put it in place,' says state Senator Peggy Rotundo, who co-chairs the Appropriations Committee. 'Then with the new people rotating through, you didn't have the same level of understanding. It sort of lost steam over a period of time.'

"While performance information has gone by the wayside, other elements in the state budget process are improving. A new, more transparent budget format debuted with the 2007-09 biennial budget and has been almost universally embraced by the legislative and executive branches. the new budget is organized by program, not line item, making it a more effective vehicle for the governor to set a strategic direction.

"Lurking is a citizen initiative that could wreak havoc on the state's finances. If it passes this fall, it would cut or eliminate the excise tax on automobiles, which brings in $203 million a year. Where would the money come from to make up for that loss?"

Susan Urahn, managing director of The Pew Center on the States, said the rankings are intended to give states objective information about how they can improve their performance.

William T. Bly, Esq.

Maine OUI Lawyer

State of the Union pt. 3

2008-03-04T08:52:00.000-08:00

It would appear that the Legislature is finally waking up to the reality that this problem is not going to go away by merely wishing it away and/or cutting every state program to the bone. Neither one are realistic options but the budget cuts we're experiencing are here to stay... at least for now. Why Governor Baldacci maintained that he wouldn't raise taxes is beyond me. Why wouldn't every single Mainer rather pay an extra $200 p/year in taxes instead of implementing such drastic budget cuts is beyond me. These cuts will affect each and every one of us. The poor, the well-off; the small businesses and large; renters and homeowners alike. Everyone is going to pay for the "see no evil, hear no evil, speak no evil" approach by our Legislature and Governor over the past four years. I will never forget when Governor Baldacci and former Governor, Angus King stumped all throughout southern Maine to encourage voters to vote down the casino proposal in Sanford. How did that help the citizens of this state? What kind of business did they help bring in instead? I'll answer that question for you... nothing. That's what the Baldacci administration and the majority of our State Legislators have done for us... nothing. The blame falls on Republicans and Democrats alike. The problems facing this State and our Nation cut across political lines. We need to deal with our dependence on foreign oil and the prices at the pump; deal with US companies profiting from the sweat and blood of our citizens just so they can report another record return of profits (yes, I believe there is much more at work here than just mere market forces and I don't buy the malarkey that the oil companies are spewing); deal with our health care problems (Maine is one of the highest priced states in the nation when it comes to purchasing health insurance); deal with our young people fleeing the State of Maine to take jobs in other states when they graduate. I could go on and on but I'll start with the fact that our State educational system is in desperate need of being overhauled and all of the different departmental parochial interests need to be swept aside in favor of a single (or markedly less than what we have now) top down administration to govern the different colleges. We need to bring clean industry in this state. It's obvious that the old model of paper mills and tourism is broken and we can no longer look to that paradigm in the future. Finally, what we need isn't necessarily more taxes, but rather, friendlier tax structures to encourage corporations to come to Maine with high paying jobs for skilled workers and professionals. Take a look at NJ. Everyone still thinks NJ is an ecological dump based on memories from the 60's. Now, I'm not saying we want to be NJ. Rather, I'm saying take a look at the fact that the majority of pharmaceutical companies are HQ'd there and in turn, that brings a huge amount of money into the State... and we're talking about clean industry compared to what we've got in Maine with respect to our dying paper mill industry. During trying times such as these, we must be willing to think of new solutions for the future or we are doomed to continue limping along with our broken paradigm, stuck in our current state of poverty and despair. Call your legislator and express to them your concern and frustration with our current budget problems. Tell them you are prepared to vote for someone else if they can't do better than legislating against bringing circus elephants into our state. Hell, try running for office yourself!

Shortfall to force difficult choices

State House: The options are to cut spending deeply, dip into savings, increase taxes -- or a combination.

By PAUL CARRIER, Staff Writer March 4, 2008

BUDGET SHORTFALL HERE'S

A QUICK LOOK at the shortfall in the state's $6.3 billion budget for the two years ending June 30, 2009.

THE STATE'S Revenue Forecasting Committee, which predicts how much the state should expect to collect in taxes, concluded last November that previous estimates were overly optimistic by $95.2 million. That's about 1.5 percent of the budget.

ON FEB. 25, the same committee said the hole now looks likely to grow by $94.8 million, increasing the shortfall to $190 million, or about 3 percent of the budget.

ON TOP OF THAT, the federal government plans to scale back payments to the Medicaid insurance program. The new $190 million calculation takes part of that federal cut into account, but not all of it.

THE LEGISLATURE'S fiscal office says the rest of the federal cut is hard to calculate right now, but the best guess is another $21.3 million. If that comes to pass, it will boost the shortfall to $211.3 million, or about 3.3 percent of the budget.

AUGUSTA — Maine's growing budget problems are setting the stage for a debate about whether the state should raise taxes or rely exclusively on spending cuts and withdrawals from the state's saving accounts to keep government in the black.

Minority Republicans in the Legislature oppose increasing taxes, while some Democratic lawmakers say the Legislature may need a three-pronged strategy that would raise taxes, cut spending and dip into savings accounts.

For his part, Democratic Gov. John Baldacci categorically opposed tax increases earlier this year. He said he will not propose any in a new budget plan expected this week.

Baldacci may be softening his opposition to tax increases, however, now that a shortfall originally pegged at $95 million has doubled in size. That could leave the door open for lawmakers to raise taxes without risking an automatic veto from Baldacci.

It is not clear how much support there is for tax increases among Democratic lawmakers, who hold majorities in both the House and Senate. At least two options have been discussed informally, according to interviews with lawmakers: targeted increases in taxes on alcohol and tobacco, and an increase in the 5 percent sales tax.

Raising the general sales tax to 6 percent would pump an estimated $140 million a year into the state's general fund, according to Maine Revenue Services.

Baldacci will propose a new budget-balancing plan this week that would supplement cuts in social services and other spending reductions that he proposed in January.

Back then, it looked as though state revenues would fall $95.2 million short of expectations for the two-year cycle that ends June 30, 2009. Since then, the state's Revenue Forecasting Committee has recalculated the shortfall at $190 million.

Scheduled cuts in federal payments for the federal-state Medicaid insurance program may boost that total, according to the Legislature's fiscal office.

When the shortfall was still estimated at $95 million, Baldacci pledged to veto any budget that raised taxes to compensate for the loss.

Even in the face of what is now a $190 million problem, Baldacci said in his weekly radio address on Saturday that the revised budget he will propose this week "will not include tax increases."

Still, Baldacci has made other statements recently that suggest he may be open to higher taxes that originate in the Legislature.

On Feb. 25, Baldacci said in a prepared statement that Maine "must first have a comprehensive discussion about spending and our priorities as a state" before considering tax increases. He said then that Maine must be "cautious about adding to the burden" faced by Mainers.

"We do not intend to propose any tax increases" to the Legislature, David Farmer, Baldacci's spokesman, said Monday. But he also said it remains to be seen what the Legislature's version of the budget will look like.

The governor's new plan may increase some still-unspecified fees, to avert public-safety cuts that would otherwise have to be made, Farmer said.

Baldacci's latest plan will seek additional spending cuts that would affect virtually every aspect of state government, as well as local schools and Maine's public colleges and universities, Farmer said Monday.

"You're going to see stuff everywhere," Farmer said of the upcoming cuts, including reductions at the departments of Education and Health and Human Services, which together account for most of the state's spending.

That is noteworthy because Baldacci's previously announced social-service cuts, which would affect foster parents, the elderly, mentally ill Mainers and others, have come under attack from affected groups and raised concerns in the Legislature.

That initial plan called for more than $60 million in social-service cuts, according to the Department of Health and Human Services.

"I think folks who try to convince the public this can all be done without pain are doing a disservice to the public," said Sen. Joseph Perry, D-Bangor, who co-chairs the Legislature's Taxation Committee.

"I think the public is looking for a balanced approach" that blends spending cuts, savings withdrawals and new revenue, Perry said.

Republican Sen. Richard Rosen of Bucksport, the assistant Senate minority leader, disagreed.

He said the state has raised taxes and fees repeatedly over the years to balance budgets in the face of recurring shortfalls, so the thing to do now is to shrink government instead of continuing to hit up Mainers for more money.

"From the Republican point of view, increasing taxes is just not going to fix it," Rosen said.

Farmer said Baldacci has not ruled out dipping into the state's savings accounts, which contain close to $160 million, to help balance the budget.

He said that remains on the table because there is not much time left to fix this year's share of the problem.

The first year of the state's two-year budget ends June 30, and $64.6 million of the $190 million shortfall falls into what's left of this fiscal year.

So even if the state crafts a budget by the end of March, that will leave only three months to solve this year's piece of the puzzle.

"That's a daunting task where you really have only one quarter left" in the fiscal year to fill a $64.6 million hole, said Grant Pennoyer, head of the Legislature's fiscal office.

That has prompted the Democratic governor, and even Republican lawmakers, to concede that the state may have to pull money out of savings to help balance the books.

Staff Writer Paul Carrier can be contacted at 622-7511 or at:

pcarrier@pressherald.com

William T. Bly, Esq.

Maine OUI Lawyer

Follow up news for the State of the Union

2008-02-27T12:28:00.000-08:00

For those folks who are interested, check out the front page article from the Portland Press Herald. If you think the impact is limited to a couple of defense attorneys, think again. The impact is expected to be widespread and will effect court clerks, DA Offices and the personnel that populate those offices, court security, and last but not least, Joe Q Citizen. Joe Q. Citizen will be affected because if these proposed radical solutions are implemented, seasoned, qualified defense attorneys will refuse to accept court appointments. Defense attorneys will close up shop or move into more lucrative and secure fields of law in which to practice and Joe Q. Citizen will sit in jail for an additional 6 weeks because of the proposed criminal law moratorium. Is this constitutional? That's a good question and one that could be answered by someone far smarter than me. Is it fair? No. Not by a long shot. Read the article and decide for yourself.

State strains to pay lawyers

To cover the court-appointed lawyer program's $1.2 million deficit, Maine may limit courts' hours or close courthouses.

By TREVOR MAXWELL, Staff Writer February 27, 2008

BIDDEFORD — He doesn't want to be here, in this small office in District Court, clutching the paperwork that will determine whether that old American promise -- justice for all -- applies to a guy with only $14 in his checking account.

David Hersh needs a lawyer.

The Biddeford man has been charged with assault, and he could go to jail if he is convicted. Hersh says he's innocent, but he and his wife scrape by to support three children, and they can't afford a lawyer.

Behind the desk, Christina Tripp-Maynard crunches the numbers: It looks like Hersh qualifies for a court-appointed lawyer, a right guaranteed to poor people by the Constitution.

For those who qualify, it's a right that can help keep a family together, keep a roof over their heads and keep the wrongfully accused out of jail.

This year, about 17,000 defendants in criminal cases in Maine -- roughly one out of every four -- will have part or all of the cost of their attorneys paid by the state. Another 10,000 parties -- including children, parents and guardians -- will receive appointed lawyers in child protection cases.

While leaders of the judicial branch agree that Maine cannot scale back on its constitutional obligation, they are struggling to pay for the court appointments, which cost the state twice as much as they did a decade ago. Those struggles are part of a much larger budget crisis facing state government.

"The shortfall affects all three branches of government," said Sen. Barry Hobbins, D-Saco, the Senate chairman of the Legislature's Judiciary Committee.

The courts expect to spend $12.3 million for appointed lawyers by the end of this fiscal year in June, plus $1.4 million for related costs, such as psychological exams and expert witnesses. That puts the program about $1.2 million over budget.

More arrests, more criminal charges by prosecutors and higher expenses for each case have contributed to the budget gap. The $50 hourly rate paid to lawyers, who volunteer for the program, has not changed since 2000, when it was raised from $40 an hour.

To make up for the shortfall in the court-appointed program, court leaders and legislators must find other areas in the judicial budget to cut.

They're considering a six-week moratorium on criminal trials, beginning in April. That would save money in this year's budget because court-appointed lawyers would not be paid and juries would not be in court. But those costs would simply be deferred, Hobbins said.

Other options discussed in Augusta this week included limiting hours at some courthouses, closing others permanently and even cutting the financial screening program -- returning to the system in which a judge discusses ability to pay with the defendant inside the courtroom.

The state budgeted $300,000 this year for the screening program, most of which pays salaries for seven employees, including Tripp-Maynard in Biddeford.

"None of the alternatives are very good," Hobbins said. "That is how drastic the measures are that we might have to take. Everything is on the table. We're kind of pressed to get some recommendations to the Appropriations Committee."

Hobbins said the Judiciary Committee will meet again to discuss the budget Thursday.

"If meetings were solutions, we'd have this thing nailed," said Maine's chief justice, Leigh Saufley, in her address to the Legislature this month. "But more meetings will not help. The increase in filings is not going away."

The number of criminal cases filed in Maine has risen from about 72,000 in 2002-03 to what's projected to be more than 75,000 in this fiscal year.

"If the attorneys can't be paid, criminal charges cannot be prosecuted, trials can't be held, alleged victims will wait. It's as simple as that," Saufley said. "We must find a way to pay these bills."

Saufley and other court officials identified the projected gap in the fall. In response, the judicial branch suspended parts of the Lawyer of the Day program, which provides legal advice to defendants who don't have lawyers and don't qualify for court-appointed counsel.

The courts also cut back on overtime, reduced travel costs by changing assignments for judges and capped the number of jury pools that can be brought into the courts. But those changes are expected to save only about $200,000 this year.

In January, Saufley appealed to Gov. John Baldacci, seeking funding to cover the rest of the shortfall.

Baldacci, who had recently ordered state agencies to curtail spending, denied the request. The court system was exempt from the curtailment order, but the Legislature's Appropriations Committee has still asked court leaders to find ways to save money.

"The problem is, if you look at the judicial budget, there is not a lot that is not constitutionally protected," Hobbins said. The total budget for the judicial branch this fiscal year is $57.8 million. Hobbins stressed the importance of the court-appointed lawyer program, which accounts for about a quarter of court spending.

"No matter who you are, you have the right to counsel. That goes to the heart and soul of the whole judicial process, of blind justice," Hobbins said.

The court-appointed lawyer program was instituted in the early 1990s as a cost-saving measure. Before that, judges talked directly to defendants and determined whether they qualified for help. That remains the case in many rural counties, because the state has only seven screeners.

Officials thought that without thorough checks, too many people were claiming that they were poor and were receiving state aid. Now, screeners can spend more time than a judge can to speak with people and review their financial situations. Meetings of 15 minutes or more are routine, and screeners often have long lines at their doors.

Tripp-Maynard recalled a recent case in which a man claimed to be indigent, but she found that he hadn't disclosed that he owned two properties.

Tripp-Maynard relies on a set of financial guidelines, some detective work and common sense to make her recommendation on a person's ability to pay. If she suspects that a person is lying, or the numbers are not adding up, she uses the Internet to check defendants' backgrounds.

She said most people who qualify are determined to be fully indigent. "They're struggling to pay for housing, heat, food and child support," Tripp-Maynard said. Because they are already living on the edge, she said, they are the most vulnerable people in the court system.

"You have people that literally are just shaking when they come in here," said Tripp-Maynard, who keeps a box of tissues on her desk. "They're confused and they're looking for direction. The knowledge that they have a lawyer to help guide them through the system -- you can sometimes see the relief when they realize that is available."

Hersh, the Biddeford man accused of assault, expressed relief when he walked out of Tripp-Maynard's office last week.

"Just to have someone on your side helps a lot," he said. "Any cutback in getting people an attorney is going to hurt."

Staff Writer Trevor Maxwell can be contacted at 791-6451 or at:

tmaxwell@pressherald.com

William T. Bly, Esq.

Maine OUI Lawyer

State of the Union

2008-02-25T15:01:00.001-08:00

I never listen to my own advice... even when that would prove to be the best medicine. I just reviewed some snippets from todays meeting with Chief Justice Saufley and the Judiciary Committee and I am seething mad. That's usually a recipe for disaster when I blog since I have a hard time biting my tongue when I'm mad. But since I'm not going to take my own advice and keep my mouth shut for a few days, here you go...

If you haven't heard the news coming out of the Judiciary Committee meeting today you're in for quite a shock . We are one of the highest taxed states in the nation along with ranking towards the bottom nationally in per capita income for our collective citizenry. We are now facing a budget deficit in the neighborhood of $200 million dollars. UNBELIEVABLE you say???!!!! Well, that's not a typo.

Every single man, woman and child will be adversely affected by this shortfall. Social services are being cut to the bone or eliminated completely, the judicial system (which is reportedly the most underfunded judicial system in the nation) is being slashed and many, many Mainers will lose their jobs as a result. How does that proposed casino from a few years ago look now? Thanks a bunch for your great leadership Governors King & Baldacci.

The Judiciary Committee let it slip today that there are no funds available to pay the 4th Qtr bills. Wow. The proposed solution? Cut hours, cut jobs, place a moratorium on criminal trials and defer payment on outstanding bills. What do all of these cuts add up to? Delay in the criminal trial process, violations of your constitutional rights to a speedy trial, a mass exodus of qualified and competent defense attorneys who will no longer take criminal appointments and finally, the closing of law firms due to the State's inability to pay their bills on time. I would argue that this is all the result of a perfect storm of circumstances. We have the failing health of our National economy coupled with an ineffective, short-sited and incompetent legislature who failed to forecast the pending disaster.

The State of Maine has placed itself in this position. The Governor and members of the Legislature have failed all Mainers by failing to bring new jobs and industry into the State. I really wonder if we tried to bring a casino into one of our more depressed areas of the State if the folks would still find it morally objectionable? If you do, ponder this question... Darryl the Gambling Degenerate is going to gamble his 401k, mortgage and paycheck somewhere, whether you like it or not. We can no longer survive by selling lobsters and the Maine Vacation experience alone. I guarantee that business plan has shown signs of illness for a number of years and as a result, we are now in the current predicament.

Call your local representative and ask him/her how they propose to fix the problem. Tell them you won't stand for any more Band-Aid on bullet hole solutions. Push for change because like it or not, change is coming. It's up to the citizens of this state to decide what form the change will come in.

William T. Bly, Esq.

Maine OUI Lawyer