Should I Take a Breathalyzer Test?: Holiday Edition


Written by Intern Nicole Williamson, UMaine Law

It’s that time of year again, and alcohol plays as big a part in the festivities of the season as stockings and candy canes. But before you get boozy celebrating the end of 2020 (finally!) you should make sure you have a designated driver or alternative travel plans. Every year, Maine sees an uptick in OUI arrests during the holiday season. The best way to avoid an OUI is, of course, to avoid drinking and driving. Still, even folks who have the best intentions can get caught up in the holiday spirit and end up buzzed behind the wheel.


I Got Pulled Over…Now What?    


So you got behind the wheel after having some drinks, and now you’ve been pulled over. If the officer who pulled you over suspects you are driving while impaired, he or she will ask you to take a breath test.


Police use breath tests to measure your blood alcohol content (BAC). If you’ve just been pulled over, the kind they will use calculates BAC using a base breath temperature of 34 degrees Celsius. Often, though, police will instruct you to hold your breath before blowing and then blow into the device as long and hard as you can. This is going to raise your breath temperature and the device will read a higher BAC. The following tips can help keep that BAC reading from becoming inflated:

  1. Don’t let your breath temperature get too high. Before you blow, breath quickly in and out 3 or 4 times—do not hold your breath! The last breath you take before blowing should be a normal breath, not a deep breath. Then, blow normally—not as hard as you can. Then, without holding your breath, blow directly into the device.
  2. Control how much breath goes into the machine. Most breath test machines require about 1.1 L of breath to get a reading. If you take a deep breath, you can blow 4-5 L of breath, on average. The breath at the end of your breath cycle is warmer than the breath at the beginning, so limit how long you blow in order to keep your breath temperature down. Aim for six seconds of steady breath, then stop blowing.

The result should be anywhere from 25% to 50% less than it would be if you held your breath and blew as long and as hard as you can.

What If I Refuse a Breathalyzer?


Maine is an “implied consent” state; this means that if you have a driver’s license, you are legally obligated to agree to a breath test if a police officer suspects that you’ve been drinking. You can refuse to take the test, but be aware that if you do, your license will be suspended, and you will not be able to drive from the time the Bureau of Motor Vehicles (BMV or DMV) sends you a notice with the effective date of suspension at least until the time you have a hearing (this is true even if you haven’t had anything to drink!) The police officer can also then get a warrant for a blood test, which will be more accurate than a breath test.


You can still be charged with, and convicted of, an OUI without a roadside breath test. You need to be aware that if you refuse a breath test and you are convicted of DUI in Maine, you will face harsh suspension penalties.

Penalties for Refusal

  • 1st refusal – 275-day driver’s license suspension (18 months if you’re under 21)
  • 2nd refusal within 10 years – 2 year driver’s license suspension (30 months if you’re under 21)
  • 3rd refusal within 10 years – 4 year driver’s license suspension
  • 4th refusal within 10 years -6 year driver’s license suspension


What Should I Do Next?


An experienced OUI lawyer can help you navigate an OUI arrest. The attorneys at Webb Law Firm have seen it all, and they know how to help. Give us a call today!

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