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The OUI Stop and the Test

29-A M.R.S. § 2521 — a breath test on probable cause, and a 275 day suspension for a first refusal

When there is probable cause to believe a person operated a motor vehicle under the influence, that person submits to and completes a test of blood, breath or urine. The officer gives a breath test unless the officer decides a breath test is unreasonable, and for a blood test the driver may choose a physician if one is reasonably available.

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Who handles this in Maine: legal aid programs and the state offices, listed in the Maine directory.

  • Before a refusal counts against anyone, the officer has to warn that refusing will bring a license suspension of up to 6 years, will be admissible at an OUI trial, and will be an aggravating factor at sentencing carrying mandatory jail.
  • Without those warnings, the higher minimum penalties for a refusal are not mandatory, and a suspension for refusing is removed when the person would not have refused but for the missing warning.
  • The person tested, or their attorney, gets full information about the test on request.

A refusal suspends the license for 275 days for a first refusal, 18 months for a second, 4 years for a third and 6 years for a fourth, unless a longer period applies.

The suspension before any trial. The Secretary of State suspends the license of a driver found to have operated at 0.08 grams or more. A written request for a hearing received within 10 days from the date the suspension takes effect stays it until the hearing is held and decided.

  • 29-A M.R.S. § 2453

An officer may arrest without a warrant on probable cause of OUI, if the arrest comes soon enough after the offense to be likely to produce evidence of an alcohol level or a drug.

Testing is also limited by the Fourth Amendment. The Supreme Court of the United States has held that a breath test may be taken without a warrant as part of a lawful arrest for drunk driving and a blood test may not; that a driver may not be criminally punished for refusing a blood test where no warrant was obtained; and that the natural fall of alcohol in the blood does not by itself create an emergency excusing a warrant in every case, which is decided case by case on all the circumstances. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.

  • Birchfield v. North Dakota
  • Missouri v. McNeely
Sources for this section (5)
  1. 29-A M.R.S. § 2521 — Implied consent to chemical tests
  2. 29-A M.R.S. § 2453 — Suspension on administrative determination; excessive alcohol level
  3. 29-A M.R.S. § 2411 — Criminal OUI
  4. Birchfield v. North Dakota, 579 U.S. 438 (2016) — A breath test may be taken incident to arrest, a blood draw needs a warrant
  5. Missouri v. McNeely, 569 U.S. 141 (2013) — The natural fall of blood alcohol is not by itself an emergency justifying a warrantless draw

Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed Maine attorney.

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