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Self-Incrimination, Testimonial Evidence, and OUI Charges

OUI Charges Defense Lawyers in Maine

In our recent blog posts, we’ve delved into some of the details of the Fifth Amendment’s self-incrimination clause. While the implications of the self-incrimination clause are wide-reaching, they only apply to evidence that is “testimonial.” Self-incriminating evidence that is “real” or “physical” can be used against you.

Our last blog post showed one way that this can impact a criminal investigation for a property crime, like burglary. In wrapping up our long discussion about the self-incrimination clause, here’s how compulsory self-incrimination can come into play for a charge of operating under the influence (OUI).

Blood or Breath Testing in OUI Cases

If a police officer thinks you’re driving under the influence of alcohol or drugs, they’ll pull you over and push you into taking a breath test. Regardless of whether you do or not, you could be arrested and brought to the police station for an additional blood test. The results of the breath or blood tests can then be used as evidence that you were under the influence.

But isn’t using this evidence against you an example of self-incrimination?

Testimonial Evidence, Self-Incrimination, and OUI

According to the Supreme Court in Schmerber v. California, a crucial case from back in 1966, blood or breath tests do not run against the self-incrimination clause of the Fifth Amendment. The Court in Schmerber paved the ground for the “non-testimonial evidence” distinction that has emasculated the self-incrimination clause.

Noting that the Fifth Amendment did not stop police from using other physical evidence – like lineups, voice identifications, and handwriting samples – the Supreme Court decided that the self-incrimination clause would not apply to blood or breath samples, either. Instead, the Court determined that the self-incrimination clause was about preventing police from getting evidence from a defendant “by the cruel, simple expedient of compelling it from his own mouth.”

The Court in Schmerber, of course, looks past the fact that its ruling allows police to do just that. By demanding OUI suspects to either provide a breath sample or face legal repercussions like an automatic license suspension, police can compel you to provide evidence against yourself, “from your own mouth.”

Even worse is how Schmerber allows police to compel a blood sample. It allows police to commit actual physical violence, and then use the evidence obtained from it against the victim. For the 10% of people who have a phobia for needles, this can amount to a form of torture, which is exactly what the self-incrimination clause was meant to avoid.

Maine OUI-Defense Attorney William T. Bly

The self-incrimination clause is supposed to be one of the many constitutional rights that protect you from overreaching by law enforcement. However, the “testimonial evidence” requirement pokes massive holes in these rights.

That’s why it’s so important to have a solid OUI-defense attorney at your side if you’re facing a drunk driving charge. The penalties for an OUI conviction are serious. Call Maine’s OUI-defense attorney William T. Bly at (207) 571-8146 or contact him online.


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So thankful I chose this team to represent me. They’re the best, hands down. Nathan Hitchcock proved my innocence not once but TWICE, including a trial by jury. I have a family in law enforcement who told me “Bill Bly and his team are the best. If I would recommend anyone, it would be them.”

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