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Abstract

Moving to the forefront of a national trend, the Maine Legislature undertook a thorough reform of its operating under the influence (OUI) law in 1981. The new statute was billed "the toughest in the nation," largely because of a provision for mandatory prison sentences. The statute's most radical provision is not the mandatory prison term, however, but a section which gives prosecutors the option to treat less egregious first offenses as civil infractions rather than crimes. The section generates the broad issue addressed by this Comment: may trial by jury and other constitutional protections formerly afforded OUI defendants be denied by the unreviewable election of the prosecutor to initiate civil rather than criminal proceedings? The issue is engendered by the interaction of two analytically separable components of the new statute: the civil provision, which purports to decriminalize less serious offenses, and prosecutorial discretion. Each is subject to limitations imposed by the federal and state constitutions. Persons charged with a civil infraction are denied constitutional protections, such as trial by jury and proof beyond a reasonable doubt, that attach to criminal proceedings. Legislatures may not take away these rights merely by labeling "civil" what is in essence a crime. In addition, the scope of any legislative grant of prosecutorial discretion is limited by the constitutional doctrines of separation of powers, equal protection, and due process. The availability of constitutional protections to those charged with a civil infraction was the very issue argued by the parties in State v. Chubbuck, the first appeal under the new OUI law to reach the Maine Supreme Judicial Court. A procedural matter prevented the Law Court from reaching the substantive issue, but the court seemed to invite another such challenge.

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