You Aren’t Required To Submit To A Breathalyzer, But You Might Want To

Typically, when a motorist is pulled over on suspicion of Operating Under the Influence (OUI), a law enforcement officer will ask the driver to exit the vehicle and perform standardized field sobriety tests.  Based on observations by the officer, he or she may ask the driver to submit to a breath test (known as a Breathalyzer or Intoxilyzer).

Under Maine 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. See 29-A §2521. This reading of the statute may leave some feeling as though the breath test is mandatory at the request of a law enforcement officer.

However, under Maine law there are provisions which increase the punishment for people who refuse to submit to an alcohol test. Therefore, it can be inferred that the tests are not absolutely mandatory if the driver is willing to incur increased penalties.

For example, if a driver refuses to submit to a breath or blood test, the Bureau of Motor Vehicles (BMV) has the authority to suspend their license immediately, without a hearing.  Usually, this automatic suspension is for a period of 275 days (for a first refusal), 18 months (for a second refusal), 4 years (for a third refusal), or 6 years (for a fourth refusal).  Also, if a driver refuses to take the breath test, the suspension from the BMV will run consecutive to the suspension imposed by the court, if the driver is eventually found guilty of the charge of Operating Under the Influence.

In addition to the increased BMV suspensions, the court will also impose harsher penalties for refusing to submit to a breath or blood test. For example, on a first offense OUI with a refusal, the mandatory minimum punishment is 96 hours in jail, a $600.00 fine, and a 150-day loss of license. Without the refusal, assuming no other aggravating factors, the mandatory minimum penalty would be a $500.00 fine and 150-day loss of license.

It is a common misconception that the State needs a breath test over 0.08 to convict a driver of Operating Under the Influence.  In reality, the State of Maine can prove the crime of Operating Under the Influence simply by proving beyond a reasonable doubt that the driver’s “mental or physical faculties are impaired however slightly, or to any extent.” State v. Worster, 611 A.2d 979 (Me. 1992).

There are many ways an attorney can challenge and defend against the charge of Operating Under the Influence, regardless of whether the driver has submitted to a breath test or not. If you’ve been charged with a criminal driving offense in Southern Maine, contact Attorney Eric S. Thistle at the law offices of Fairfield & Associates, P.A.

Attorney Eric S. Thistle can be reached by email at or by telephone at (207) 985-9465.

Disclaimer: This article is intended to provide general information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author and the reader.