As a criminal defense attorney, I have to say that one of the most popular questions I am asked repeatedly by friends, family, and colleagues alike is, “Should I blow?” Most people understand the context of this question, which refers to consenting to a breathalyzer test if arrested for operating under the influence (OUI). Please note that my comments herein specifically regard Maine law.
Let me set the stage: it is a beautiful summer night, and you just watched the Celtics clinch another NBA Championship with some friends at a fun waterside bar. You are feeling great as you blast “We Are the Champions” and exit the turnpike to drive the last few miles home. Suddenly, those unnerving blues that no one wants to see light up in your rear-view mirror!
“Relax, you tell yourself, keep it together! You only had a couple beers hours ago at halftime, after all!” You hand your license and registration to the officer. A word of general guidance—whenever you have contact with the police, assume everything you say or do is being recorded. The officer is friendly and sees your Celtics gear. He starts talking to you about the 50-point masterpiece of a game Payton Pritchard had to seal the Championship. However, then there is a shift in conversation and the officer starts peppering you with questions about your alcohol consumption. You are only obliged to provide him with your name, driver’s license, and proof of insurance. Based off your answers that you provided in good faith; the officer then kindly orders you to get out of your car and take a series of field sobriety tests. Unfortunately, the officer believes you failed the sobriety tests and arrests you for OUI. At this point, the officer places you in custody and transports you to the local police station. As you sit in the holding cell, the officer asks, “Do you consent to this breathalyzer test?”
Okay, it is time to slowly unpack this next part for your benefit. Maine has an implied consent law, which means that if police believe they have satisfied the very low evidentiary standard of probable cause that you have operated a motor vehicle under the influence of intoxicants, you have a duty to comply with the tests.[1] If you don’t, you WILL serve a mandatory minimum “period of incarceration” as mandated by the criminal statute.[2]
The key here for the police is that they MUST warn you of the consequences of failing to submit to the test before you decide whether to blow. Now, if the police inform you of your rights by reading that disclaimer and you decline or fail to complete the test, prosecutors can then use this evidence in court at your trial. Normally, at a trial like this, prosecutors would use any chemical evidence to prove that the defendant was over the legal limit. However, under Maine’s implied consent law, prosecutors can make the argument that your refusal to take the test is evidence of impairment.
Ok, let’s return to Championship night. You refuse the breathalyzer…what could happen? For a first-time refusal, your license will be suspended for at least 275 days. It is important to understand that this suspension is not dependent on the outcome of any criminal trial or plea agreement in your case. If this was not your first go-around, the mandatory license suspensions are longer for every additional refusal. Can you fight this suspension? Yes, you can request an administrative hearing at the Bureau of Motor Vehicles (BMV). Contact us for more information about that procedure.
Since you refused the breathalyzer, your license remains suspended after the BMV hearing. Regrettably, you are subsequently convicted of OUI at your criminal trial. The court will then impose a driver’s license suspension as well. This suspension will run consecutively with your suspension from the BMV, meaning it will start once your BMV suspension ends.
But wait for it: we have not made it to the grand finale quite yet! By refusing to take that breathalyzer on Championship night and getting convicted of OUI at trial, you will receive a mandatory minimum jail sentence based on your refusal, even if you are a first-time offender. Your refusal will also increase the minimum fines that must be paid after an OUI conviction.
To blow or not to blow? Well, the final answer is only yours to give, but hopefully now you have more information to make a fully informed decision if you are ever pulled over on Championship night, or any other night for that matter.
If you seek legal advice about an OUI offense, please do not hesitate to schedule a consultation with us by calling: 207-985-1815. As a reward for getting through this legal treatise, the first 30 minutes are free!
[1] https://legislature.maine.gov/statutes/29-A/title29-Asec2521.html
[2] https://legislature.maine.gov/statutes/29-a/title29-Asec2411.html
