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If you’re stopped by a police officer and he suspects that you’re driving drunk, his investigation will likely go in the following order.

  1. The officer will ask you if and how much you’ve been drinking.
  2. Regardless of your answer, he will likely ask you to perform a field sobriety test (FST).
  3. After or during the FST, the officer will ask you to blow into a portable breath test (PBT).
  4. If he suspects that you are impaired, he will arrest you, bring you to the police station, and ask you to submit to a breath test. (Note: the PBT is usually inadmissible at trial, but the breath test done at the police station is admissible.)

You have the right to refuse any or all of the officer’s requests. While you cannot resist arrest, you do not have to answer questions about what or how much you’ve been drinking. Nor do you have to submit to the FST or the PBT. You can even refuse to take the breath test at the police station.

There is no penalty for refusing the FST or the PBT. Moreover, refusing to answer an officer’s investigatory questions (e.g., “have you been drinking?”) is a constitutional right and your silence cannot be used against you.

However, refusing the breath test at the police station will result in an automatic license suspension of at least 180 days. (The suspension time is increased for subsequent offenders and drivers under 21.)

If you in fact refuse all of the officer’s requests, an OUI conviction is unlikely unless there are open alcohol containers in your car and/or you are visibly drunk in the arrest videos. These usually include one or all of the following: cruiser cam videos, body cam videos, and booking videos.

Nevertheless, you will lose your license for a significant period of time, at least six months. And you will need to attend numerous court hearings before your case in brought to trial.

Complying with the police is usually the fastest route to getting your license back. If this is your first OUI, you could in fact submit to all tests, appear at your arraignment, and simply accept the standard OUI plea deal. This, in most cases, would reduce your license suspension to a mere 45 days and give you an opportunity to get a hardship license from the RMV during that time. The down side, of course, is that you’ll have an OUI conviction on your record and any subsequent offense will not be treated so leniently.