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Breath Testing


When you have been pulled over and later arrested on suspicion of drunk driving, you will be asked to provide a breath sample. Misconceptions exist about what your rights are and how these tests work. Misunderstandings can lead to more problems, especially if you refuse to take a breath test.

Breath tests for Maine OUIs are conducted with the "Intoxilyzer," a breath alcohol testing apparatus approved by the state. Approved Intoxilyzer machines are subject to calibration requirements established by state law. Our OUI defense lawyers are trained and experienced to investigate and analyze whether or not the machine was maintained and calibrated as required and whether the test results are subject to legal attack.

Do I Have a Right to Refuse a Breath Test in Maine?

Before you provide a breath sample, the officer should have read you an "implied consent" warning, advising you of the consequences of refusing to take the test:

  1. By operating or attempting to operate a motor vehicle in this State you have a duty to submit to and complete chemical tests to determine your alcohol level and drug concentration.
  2. The officer will give you a breath test unless he or she decides it is unreasonable, in which case another chemical test will be given. If you are requested to take a blood test you may ask that a physician perform the test if a physician is reasonably available. 
  3. If you fail to comply with your duty to submit to and complete chemical tests, your driver's license or permit or right to apply for or obtain a license, will be suspended for a period up to 6 years. Your failure to submit to a chemical test is admissible against you at any trial for OUI.  If you are convicted of OUI, your failure to submit to a chemical test will be considered an aggravating factor at sentencing which in addition to other penalties, will subject you to a mandatory minimum period of incarceration.
  4. If you are 21 years of age or older, an additional 275 days of suspension will be imposed if you had a passenger under 21 with you in the vehicle at the time of the offense. If you are less than 21 years old, an additional 180 days of suspension will be imposed if you had a passenger under 21 with you at the time of the offense. 

These laws basically say that you implicitly agree to obey the rules of the road when you get a driver's license. As such, you also implicitly agree to any chemical tests (breath, blood, or urine tests) in exchange for the privilege of operating a vehicle in the state. If you refuse, the BMV can impose an automatic license suspension and other penalties against you. You do not have to be charged and convicted in court of a drunk driving offense to have your license suspended; however, the BMV must find that you refused a breath test. Our Maine OUI defense lawyers can represent you both in court and at the BMV administrative hearing to strive to prevent a license suspension.

Common Problems with the Breath Tests in Maine

Intoxilyzer results can be unreliable and become inadmissible under certain situations or circumstances. Problems with breathalyzers can be categorized as those resulting from the Intoxilyzer machine, the police officer operating the device, or the test sample.

The right defense lawyer can file motions to suppress or exclude these test results. Sometimes, if successful, this can result in dismissal of the charges or an acquittal.

Problems with the Breathalyzer Device

  • Improper calibration
  • Incorrect chemical solutions
  • Inappropriate modification
  • Faulty programming
  • Broken or otherwise not maintained properly

Issues with the Administration of the Test

  • Failure to read warnings
  • Improper instructions or methodology
  • Failure to follow testing protocols
  • Testing performed by an untrained person

Causes of Improper Intoxilyzer Test Results

  • Pre-existing conditions or other medical conditions suffered by the test taker
  • Medications, foods, or drinks
  • Residual alcohol from the test taker's mouth

5 Ways To Challenge OUI Breath Tests

A breath test is often a substantial part of the prosecution's case involving OUI offenses. For that reason, it is essential to ensure that a breath test was performed correctly and the results are accurate. OUI defense attorneys who have been well trained and have experience in these cases can identify a problem with a breath test and take proper action to exclude it as evidence.

At the Law Offices of Dylan Boyd, we can take any of the following actions, depending on the specific facts and circumstances of your case:

  1. Attack the reliability of the breath test. Many reasons exist why we may not be able to rely on the results of a breath test, like a faulty machine, improper administration, or health issues with the test taker.
  2. Prove the breath device was not properly calibrated. There are certain requirements regarding the calibration of the machine.
  3. Prove the device was not properly maintained. Typically, the date and time of repairs and maintenance, as well as who performed the maintenance and repairs, must be logged. There may be problems.
  4. Prove there was a lack of training or an operator's error. Police must be trained in order to conduct breath tests. An untrained or uncertified police officer may not properly administer the test.
  5. Prove records were not properly maintained. Records should be kept to show proper calibration and maintenance, and failure to keep those records updated can be used to prove the device was not properly calibrated or maintained as the law requires.

During the discovery phase of your criminal case, we will obtain the information and evidence we need to support arguments against the breath test's admissibility.

Contact a Maine OUI Defense Lawyer

You can have your day in court and at the BMV to challenge OUI charges, regardless of whether you took a breath test or refused one. With the right OUI defense lawyer, you can ensure that you will get the best outcome possible. Contact the Law Offices of Dylan Boyd, in Portland, Maine, by calling us at (207) 536-7147 or filling out an online form to schedule a consultation. We will review your case and discuss your best legal options.

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