Taking or refusing a breath test in Maine.

Should I refuse a breath test if charged with OUI in Maine?

People often ask if it better to take or refuse a breath or blood test if charged with OUI. There is no definitive answer to this questions and many things to consider in deciding whether to take or refuse a breath test.

Both the breath or blood test results—if done correctly—can be used against the driver in Court to try and prove impairment. A BAC of 0.08 or higher at the time of driving is considered proof the driver was impaired. A test refusal alone is not considered proof the driver was impaired but can be considered as evidence of impairment.

Maine law requires a person to take a breath test or there can be more immediate consequences to the person’s driver’s license, and the sentence imposed if found guilty in Court is more serious.

Maine’s implied consent law: “If there is probable cause to believe a person has operated a motor vehicle while under the influence of intoxicants, that person shall submit to and complete a test to determine an alcohol level and the presence of a drug or drug metabolite by analysis of blood, breath or urine.”

Before a person is considered to have “refused” a test, a law enforcement officer must notify the person that a refusal will: “Result in suspension of that person's driver's license for a period up to 6 years; be admissible in evidence at a trial for operating under the influence of intoxicants; and be considered an aggravating factor at sentencing if the person is convicted of operating under the influence of intoxicants that, in addition to other penalties, will subject the person to a mandatory minimum period of incarceration.”

The most immediate consequence of refusing a breath or blood test is the Maine Motor Vehicle Bureau (BMV) will suspend the driver’s right to drive in Maine. For a first offense refusal allegation, the BMV will suspend the driver’s license for 275 days. This suspension typically goes into effect a few weeks after being charged with an OUI refusal. The driver is notified of the suspension by mail. The driver can request an administrative hearing challenging the allegation and has a right to a hearing. However, the driver’s license will remain suspended pending the outcome of the BMV hearing. It typically takes a few months before the BMV hearing is held-meaning there will be a period of months when the driver’s right to drive in Maine is suspended. 

A driver who takes a breath or blood test will not be suspended by the BMV as immediately, or for as long as a driver who refuses a test. For a first offense OUI, the BMV will send a notice of suspension letter for a 150 day suspension. The driver has a right to request an administrative hearing on the suspension. If a hearing is requested, the driver’s license will remain active pending the scheduling and outcome of the hearing. 

Refusing a breath or blood test does not automatically make a person guilty of OUI in court. The State is required to prove guilty beyond a reasonable doubt. The refusal of the test is one piece of evidence the State can present to try and prove the driver was operating under the influence—often the State will rely on the person’s driving and performance on field sobriety testing to try and prove the impairment in a refusal case.

If a person is found guilty of an OUI and refusing the test in Court there is mandatory jail time that the Court most impose—for a first offense OUI refusal the mandatory jail time is 4 days. By comparison, for a person found guilty of a first offense OUI with a test of below 0.15 BAC the Court is not required to impose jail time, and for a test of 0.15 BAC or higher the mandatory jail time is 2 days.