Refusal to Take a Breathalyzer or Blood Test in Maine: Laws & Penalties

Believing that a test of .08 or above is required for a drunk driving conviction, many people who are arrested for OUI refuse to take a breath test. Doing so may deprive the State of a test result, but it will not prevent the State from charging you with OUI. Worse yet, a refusal can create a host of other problems, such as additional jail time, fines, and an additional license suspension. Thus, it is important to hire a qualified OUI defense attorney if you have been charged with operating under the influence after having refused to submit to a test.

Maine’s Implied Consent Law

Under Maine’s implied consent law, a person has a duty to submit to a test when a police officer has probable cause to believe the person operated a motor vehicle under the influence of intoxicants. 29-A M.R.S. § 2521. The police officer must administer a breath test “unless, in that officer’s determination, a breath test is unreasonable.” If the officer determines that a breath test is unreasonable, the officer will likely ask the person to submit to a blood or urine test.

Penalties for Refusing a Breathalyzer or Blood Test in Maine

Refusing a breath, blood, or urine test after an OUI arrest can result in serious criminal and administrative consequences, provided that the officer read you the statutory implied consent warnings.

Your Refusal Will be Admissible as Evidence Against You for OUI

It is a common myth that the State must prove you have a BAC of .08% for you to be convicted of OUI. That is but one of two ways of proving that a person is OUI. The other way is to prove that the person’s physical or mental faculties were impaired by the “slightest degree” by intoxicants. This can be done through circumstantial evidence, such as erratic operation, odor of alcohol, performance on field sobriety tests, and admissions to drinking.

Under Maine’s implied consent statute, the prosecutor can present your refusal as evidence that you were in fact under the influence of intoxicants—the theory being that you feared you would have failed the test had you taken it. Some judges will even instruct the jury that your refusal can be considered as evidence of impairment.

Your License Will Be Suspended for Up to Six Years

When you refuse a test, the arresting officer will send a notice to the Maine Bureau of Motor Vehicles (BMV). The BMV will issue you a notice of license suspension, which will go into effect not less than 10 days after the notice is mailed. In practice, the notice is typically mailed within 2-4 weeks of the date of your arrest.

There is a 275-day license suspension for a first refusal; a 2-year suspension for a second refusal within 10 years; a 4-year suspension for a third refusal within 10 years; and a 6-year suspension for a fourth refusal within 10 years. Although you can request an administrative hearing after receiving the notice of suspension, the effective date of the suspension is not stayed pending the date of the hearing.

Another nuance of a refusal suspension is that a later suspension imposed by the court for an OUI conviction will run consecutively to a refusal suspension. For example, a person who refuses a chemical test and is convicted of a first offense OUI will receive a total license suspension of 425 days—275 days for the refusal and 150 days for the OUI conviction. In contrast, a person who submitted to a test on a first offense OUI will generally face a total license suspension of 150 days. Although there will be two 150 day suspension, those suspensions will run concurrently with one another.

Mandatory Minimum Period of Incarceration

If the State pleads and proves that you refused a chemical test, it will enhance the mandatory minimum jail sentence that must be imposed if you are convicted of OUI:

  • A 96-hour jail sentence on a first offense OUI
  • A 12-day jail sentence on a second offense OUI
  • A 40-day jail sentence on a third offense OUI
  • A 6-month, 20-day jail sentence on a fourth or subsequent offense OUI

These penalties add anywhere from 96 hours to 20-days to the mandatory minimum penalty you would face had you taken the test. Likewise, a refusal will enhance the mandatory minimum fine you must pay if convicted of OUI.

Implied Consent Warnings

Neither a person’s failure to submit to or complete a test may be used for any of the purposes specified below, unless the person has first been told that the refusal or failure will:

  1. Result in suspension of that person’s driver’s license for a period up to 6 years;
  2. Be admissible in evidence at a trial for operating under the influence of intoxicants; and
  3. 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.

Should I Refuse a Breathalyzer in Maine?

This is a choice only you can make, after knowingly considering the consequences of the refusal. Unfortunately, Maine (unlike some other states) does not allow you to consult with an attorney before deciding whether to take a breath test. For many, the additional consequences of the refusal itself will outweigh the potential benefit of depriving the State of a breath or other test.

Even if you refused, you still have the right to fight your OUI charge. There are many understandable reasons why a person might refuse to take a breath test having nothing to do with guilt or innocence. It is important to have a knowledgeable OUI defense attorney by your side who understands how to attack the State’s case regardless of whether you completed a test.

This article is for informational and educational purposes and is not intended to be legal advice. You should consult with an attorney to assess the legal issues specific to your case. If you have been charged with OUI, please contact us today for a free consultation. 

Tyler J. Smith

Tyler J. Smith

Tyler Smith joined Libby O’Brien Kingsley & Champion as an associate in 2012 and became a partner in 2018. He maintains a general litigation practice, with experience in criminal defense, employment law, appellate advocacy, defamation/slander, civil rights, undue influence, and other civil disputes. He is also experienced in representing professionals before professional licensing boards. In… Read more »