Bill looks to expand OUI testing in Maine

Posted Feb. 04, 2009, at 10:08 p.m.

AUGUSTA, Maine — All drivers involved in motor vehicle accidents in which someone is seriously injured would have to be tested for OUI under a measure before the Legislature’s Criminal Justice Committee.

During a Wednesday public hearing on the bill, its opponents contended it was an infringement of constitutional rights.

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“There were three cases in my district where this would have helped,” said Rep. James Schatz, D-Blue Hill. He said all are tragedies and are why he introduced the measure.

“One resulted in a person that can never work again,” he said. “Another accident in our area resulted in a teenager becoming a paraplegic.”

Schatz said in all of the cases he cited, there was evidence that the drivers causing the accidents had been driving while impaired, but because the police officers had not ordered OUI tests, there was no irrefutable proof. He told committee members he is sure his area is not the only one in the state that has such cases.

“These families have testified before on similar legislation, but I did not ask them to come and testify today and reopen those memories,” he said.

But, he did offer to ask the families to submit copies of their past testimony for the panel to consider in their deliberations.

Schatz was quick to acknowledge the constitutional issues in the bill that were raised by several committee members in their questioning of him.

“My feeling is that we have narrowly enough defined ‘serious bodily injury’ as to not make the intrusion on an individual’s privacy in this case either arbitrary or capricious,” Schatz said.

But, opponents argued, the measure is overreaching and would violate the constitutional rights of the drivers involved in the accident.

“To require an invasive test on the basis of any accident that has the potential for serious injury is a dangerously low standard, and in fact violates the constitution,” said Alysia Melnick of the Maine Civil Liberties Union. She said mandating a blood-alcohol test or Breathalyzer test without the probable cause usually required violates the constitutional right to privacy.

But Everett Fowle, district attorney for Kennebec and Somerset counties and president of the Maine Prosecutors Association, said the measure would pass constitutional muster and endorsed the bill. He pointed to the existing state law that requires an OUI test if a death occurs from an accident. That has been upheld by the Maine Supreme Judicial Court.

“The theory behind our present law is that a fatal accident is so serious that it is better to get the evidence first and then let the suppression motion in court determine later whether there was probable cause or not,” he said.

Fowle said prosecutors will have to convince a judge, with evidence separate from the test results, that the test was warranted before the test results can be used in court. He said that protects the rights of the individual.

Melnick disagreed.

“The idea that police officers can collect evidence with a cross-their-fingers-and-hope attitude is a really dangerous standard to set,” she said. “If an officer had a hunch that you may be doing something wrong and then if they find something, being able to justify it after the fact, these are the type of concerns that caused us to have the probable cause standard in the first place.”

Melnick said the way the measure is drafted a victim in an accident would again be “victimized” by having to submit to an OUI test.

The bill also was opposed by the Secretary of State’s Office. The director of motor vehicle licensing, Robert O’Connell, gave a history lesson on the issue. He noted that a measure similar to the proposed bill was once part of Maine law and was repealed after it was found to be unconstitutional.

While the Maine State Police did not oppose the bill, Lt. Chris Grotton told lawmakers that requiring police officers to order the testing will have a price tag.

The committee will now consider the legislation at a work session before it goes to the full Legislature for its consideration.

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