Refusal of Intoxilyzer Test

State v. D.P.

Defense Attorney:

Matthew B. Nichols

Offense:

Operating Under the Influence-2nd offense (OUI, DUI, DWI) (Refusal)

Maximum Sentence:

364 days in jail (minimum 4 days in jail), 90 days license suspension in the State of Maine and $2,000 fine (lifetime suspension in Massachusetts because prior DWI conviction resulting in death)

Synopsis:

Because client had a prior DUI/vehicular manslaughter conviction, his home state would have suspended his license for the rest of his lifetime if convicted in this case. Also, because of his prior conviction, client was looking at probably a minimum of 6 months in jail as well if convicted on this case. According to three employees of a tavern in Bath, Maine the following occurred. Client and a friend of his attempted to enter the tavern around last call. They were refused entry because they were so intoxicated and were warned not to attempt to drive out of the parking lot or else the police would be called.

According to those witnesses, client and his friend got into client’s pick-up truck and client attempted to drive out of the parking lot and almost striking several pedestrians in the process. Just before the police pulled into the parking lot, client awkwardly parked his truck in a parking space.

According to the arresting officer, client failed his field sobriety test and subsequently refused to submit to an Intoxilyzer test at the police station.

Client testified that only his friend was refused entry and that he actually did enter the tavern and left when he realized that it was past last call. Client testified that the employees were actually bouncers and were threatening and confrontational. He testified that he did not even enter the truck let alone attempt to drive out of the parking lot. Finally, client testified that he refused to submit to a breath test because the Implied Consent form specifically states that a person need only submit to an Intoxilyzer test if that person operated or attempted to operate a motor vehicle. In fact, the arresting officer’s testimony on cross examination corroborated client’s concern about that language in the Implied Consent form. In other words, the officer testified that client repeatedly told him that he would not submit to a breath test that, because, according to the Implied Consent form, that submission was arguable constitute an admission to operating or attempting to operate a motor vehicle.

Once again, Attorney Nichols’ cross examination of a multitude of State’s witnesses revealed significant inconsistencies in their statements.

Verdict:

Not Guilty