The question whether you should take an alcohol breath test if suspected of OUI does not always have a black-and-white answer. There are Implied Consent Laws in Maine that make a person obligated, by statute, to submit to an alcohol breath test. However, you cannot be physically compelled to take the test. When you fail to submit to an alcohol breath test, it is called a Refusal. People who are charged with OUI Refusal automatically face greater penalties than if they had simply given a breath sample.
Here are some perspectives on the question whether or not a person should submit to a breath test. For answers to your specific questions, please feel free to give me a call. I can help answer your questions about your specific situation.
Implied Consent to Take an Alcohol Breath Test
Maine has what is called an “Implied Consent Law,” meaning that having a driver’s license alone is enough to make you obligated to take an alcohol breath test if suspected of OUI. Under the law of “implied consent,” you do not get the opportunity to decide whether or not you would like to take the alcohol breath test using any other criteria. Put most simply, “implied consent” means that you are legally obligated to take an alcohol breath test.
What if I cannot provide a breath sample?
In some situations, a person might have a physical condition that prevents them from providing an adequate breath sample, such as asthma, in which performing a breath test might bring on unwanted symptoms. In this scenario, instead of refusing a breath test outright, I recommend that people volunteer to under go another type of chemical test provide a different type of sample, such as urine or blood. Providing a different type of sample other than breath will not hurt you at Court, because there are potential flaws with each type of test that your criminal defense lawyer can take advantage of. For example, blood samples can be drawn improperly, or the sample can be handled improperly, leading to reasonable doubt whether the sample was reliable.
What will happen if I do not provide a breath sample?
Ultimately, if you do not provide a breath sample and the officer feels that there are no other reasonable alternatives such as undergoing a blood or urine test, then you would be charged with OUI Refusal. When charged with OUI Refusal, the mandatory minimum penalties upon conviction would be greater for a first offence refusal, including the following:
- First Offense OUI Refusal Conviction
- $600.00 Fine (plus fees and surcharges).
- 96 hours mandatory jail time.
- 150 days driver’s license suspension consecutive to the mandatory 275 day BMV suspension for a refusal.
- Beware that with a refusal the BMV suspension begins on the notice date and will not be stayed with a request for a hearing.
In closing, if you are facing a charge of OUI Refusal, I can help you determine what the effect will be in your case. Our committed legal team is determined to take immediate action to seek a positive outcome for your case. If you or someone you know is charged with OUI in Maine, I encourage you to contact The Nielsen Group for your free legal consultation with an experienced criminal defense attorney. We will take the time to answer your questions and to put your mind at ease as we work with you to determine a defense strategy.
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If you enjoyed the answer to the question (What should I do if I am asked to take a breath test in Maine?), you may also want to read:
- Found Not Guilty: An OUI Case Study
- First Offense OUI
- Second Offense OUI
- Commercial Driver’s License OUI
- Third Offense OUI