“If I am arrested for operating under the influence (OUI), should I take a test or refuse”? For purposes of this column, let’s assume you have no priors within the last ten years and there are no other aggravating factors in your case (serious injury or death, passengers under the age of 21, you are over 21, etc).
If you refuse the test you will receive a 275 day suspension from the Secretary of State before you even go to court. You will be afforded a hearing to contest that suspension, but that’s the starting point. If, that’s a big if, you are later convicted of OUI in court; you will receive an additional 90 day suspension and a minimum mandatory four day jail sentence and minimum $600 fine. Additionally, the “refusal” will be admissible in a potential trial. Some judges will instruct the jury that they may consider the refusal as evidence of impairment (being under the influence).
If you take a test, the initial administrative/Secretary of State suspension will be 90 days. If you are convicted of OUI later in court, the judge will also impose a 90 day suspension and a minimum fine of $500. However, unlike the “refusal” scenario, you will receive credit for any time that your license was previously suspended. There is no minimum mandatory jail sentence unless your test result is 0.15 or higher (48 hours).
You do not have the right to chose what type of test will be administered. Almost always (unless it is unreasonable due to physical disability or injury or machine unavailability) the officer will offer you a breath test. Some officers will accommodate a request for a blood test, but they are not required to so absent exigent circumstances.
Under Maine law, you are not entitled to the advice of an attorney, friend, family member or anyone else to assist you in making your decision. Likewise, the officer is not bound to provide with any information or guidance beyond the “bare bones” warnings contained in the Implied Consent form.
The choice is yours. No matter what decision you make, you will have the opportunity to challenge the government’s accusations in both the administrative/Secretary of State proceeding and the criminal case. Hopefully, this column will help you make an informed decision. The officer will not provide you with this kind of detail.
If you are charged with OUI, make the right decision when choosing your lawyer. Call us at 207-879-4000.
Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).
