Most criminal offenses are defined to require not just the commission of a prohibited act, but also that the act must be committed while the person has a certain culpable state of mind.   In the days when Latin terms pervaded Anglo-American law, the bad act was referred to as the actus reus and the culpable state of mind was referred to as the mens rea.    A person might have a bad state of mind, but if the person does not act upon his or her bad thoughts and impulses, there is no crime.  Any criminalizing of bad thoughts alone would create thought crimes.  Conversely, a person might commit an act that results in harm, but if the act is not accompanied by a certain mens rea, no crime is committed.  This acknowledges that bad results sometimes flow from accidents and other unwitting conduct that should not be stigmatized and punished as criminal.   For the most part, then, crimes are defined to require the convergence of a prohibited act and a culpable state of mind.

There are crimes that are defined to require no culpable mental state.   These are strict liability crimes.  If you commit the bad act, you commit the crime, no matter what you were thinking or whether you were thinking anything at all.   OUI is a strict liability offense.  If you drive when you are under the influence or have an excessive alcohol level, it doesn’t matter if you intended to drive in that condition, or knew it was practically certain you were in that condition, or consciously disregarded a risk or failed to be aware of the risk that you were in that condition.   The crime is complete when the prohibited act is committed, regardless of your state of mind.   The same is true of gross sexual assault.  If you engage in sexual intercourse with someone by compulsion or engage in sexual intercourse with someone under age 14, it doesn’t matter what’s  in your head at the time.

For OUI cases, if your mental or physical faculties are affected to any degree by a prescription drug, it doesn’t matter that you were unaware of the effect.  If a Drug Recognition Expert has probable cause (an exceedingly low standard, whose distance from no evidence at all can be measured by the thickness of a standard sheet of paper) to believe you are affected to some degree by a particular prescription drug or category of prescription drug while driving, the officer can require you to submit a drug or urine sample.  If analysis of that sample shows that the suspected drug is present in the sample, and a BMV hearings examiner finds it more likely than not that you were under the influence of the detected drug, your license will be suspended administratively for the same length of time required for an OUI conviction.   You should, therefore, never volunteer that you are taking any type of prescription drug.   The officer only wants to know about it so he/she can hose you with it.  If you tell the officer what prescription you are taking, guess what drug the officer will suspect is affecting your mental or physical faculties.  Now guess what kind of drug the lab will test for, and therefore detect, when analyzing your sample.   Remember, you are not required to speak against yourself.  If you choose to remain silent on this matter, you are within your rights to do so.   Besides, to be entitled to your blood or urine sample, the police need to have a highly trained and specialized Drug Recognition Expert assess you.  Any officer with such specialized training should be able to ascertain precisely what is affecting your mental or physical faculties without any help from you.  Otherwise, what’s the sense in the taxpayers paying for all that highly specialized training?

Make no mistake, if an officer reads you implied consent warnings and tells you that you must provide a breath, urine or blood sample, you’d better provide the sample or you’ll be suspended even longer for refusing.  But, other than in providing a blood, breath or urine sample, you do not have to assist the police in gathering or manufacturing evidence against yourself, so why tell them what to look for?

I’ll be sure to report any thought crime legislation to you as soon as I get wind of it.  It might not be all that far off.


This post is not legal advice and the reader has no attorney-client relationship with me because he or she read it.   This post is for general, informational purposes only.


Ed Folsom, Biddeford, Saco, Portland, Maine, Criminal Defense, OUI, DUI Attorney.